Sacramento Car Accident Lawyer Blog

The following blog entry is written to illustrate how a car accident lawsuit might follow. Reviewing this kind of case should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

The plaintiff had an assortment of pre-existing ailments and injuries dating back to the early 1990s, including neck pain and migraines, defense counsel noted. The plaintiff was also involved in at least two accidents prior to this incident, including one in 1999, when she hired an attorney and claimed cervical injury.

Plaintiff's counsel acknowledged that the plaintiff had a pre-existing condition, but insisted that she was relatively symptom free in the two-year period prior to the subject accident and never experienced radicular pain. Plaintiff's counsel argued that the plaintiff was unusually susceptible to injury and that this seemingly innocuous incident caused the symptoms.

The defense medical expert related the disc herniation, the adjacent disc disease, both surgeries and significant medical expenses and disability to the minor car accident, according to defense counsel.

SUMMARY:
RESULT: Mediated Settlement
Award Total: $1,250,000
The case settled for $1.25 million.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The following blog entry is written to illustrate how a car accident lawsuit might follow. Reviewing this kind of case should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

INJURIES: Several days after the accident, the plaintiff visited her general physician for neck pain. After an extended course of pain medications and physical therapy, an MRI revealed a herniation at L4-5. She underwent a laminectomy and cervical fusion more than a year after the accident.

Facts:
On December 14, 2008, the plaintiff, a nursing assistant, was stopped on ABC Avenue in Sacramento when her vehicle was struck from behind by a car driven by the defendant. The impact was approximately 10 mph, and the damage sustained by both cars was minimal. The police were not summoned.

The plaintiff sued the defendant for motor vehicle negligence.

The defendant did not test liability.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Woman Severely Injured in Sacramento Car Accident When Rear-Ended, Part 1 of 2" »

The following blog entry is written to illustrate how a car accident lawsuit might follow. Reviewing this kind of case should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

CLAIMED INJURIES
According to Plaintiff: Severe head injuries as well as non-life threatening physical injuries; originally conscious after being airlifted to Sacramento County Medical Center; lapsed into vegetative state one week after brain surgery and lingered in that condition for 13 months before death.

CLAIMED DAMAGES
According to Plaintiff: $775,079 medical specials; $342,825 lost income and household services.

COMMENTS
According to Plaintiff: Initial evaluation of the case by accident reconstructionists concluded that it was impossible to tell in which lane the initial impact between Merry’s pickup and the Travis rig occurred. There was no question that the second impact between the pickup and the second ABC truck occurred in the westbound lane of traffic.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Personal Injury Case Involves Collision Between Two Trucks, Part 3 of 3" »

The following blog entry is written to illustrate how a car accident lawsuit might follow. Reviewing this kind of case should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Plaintiffs alleged that Travis’ testimony that the initial impact involved Merry’s pickup striking his cab behind the driver's door demonstrated that he did not see the beginning of the accident because it did not account for the damage to the headlight, front quarter panel and front wheel of his cab. Human factors analysis demonstrated that Travis’ description of the accident—Merry’s pickup turning sharply, crossing the centerline and striking him behind the driver's door--was contrary to anticipated driver behavior; drivers do not turn sharply into oncoming traffic. Plaintiffs alleged that the impact Travis described would not have resulted in the pickup moving from that impact into the path of the second truck.

Contrastingly, accident reconstruction established that what actually happened was that Travis allowed his rig to drift over the centerline. In response, Merry attempted to steer sharply to the right to avoid the oncoming truck but was struck by the front of the cab behind the driver's door of the pickup, causing the pickup truck to then spin into the path of the oncoming second truck and trailer.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Truck Accident Puts Man In Comma and Leads to Death, Part 2 of 3" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

Ms. Johnson returned for a follow-up examination with Dr. Greene on March 17, 2009. She reported little improvement in her low back pain and continued to experience weakness and pain radiating into the right lower extremity. Dr. Greene recommended a lumbar discography from L1-2 through L5-S1 based on his review of her lumbar spine MRI and symptomatology. He further noted Ms. Johnson would be a candidate for surgical discectomy depending on the results of her lumbar discography.

On June 16, 2009, Ms. Johnson underwent lumbar discography which proved positive for 112 10/10 severe pain at L4-5 and positive for 8/10 concordant pain at L2-3. Ms. Johnson was then admitted for right percutaneous discectomy with automated nucleotome and pitutitary rongeur under fluoroscopic monitoring at L4-5.

As a direct and proximate result of the injuries that Ms. Johnson suffered due to defendant Black’s negligence, she incurred the following medical expenses:

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Car Accident Victim Incurs Major Medical Expenses, Part 4 of 4" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

PLAINTIFF'S SPECIAL DAMAGES cont.

Ms. Johnson's August 19, 2009 lumbar MRI revealed a 3mm right paracentral hernation at L1-2, 2mm annular bulge at L4-5, 3mm central/right paracentral contained hernation at L2-17 and abroad 2mm posterior herniation at L5-S1. Because of the persistent nature of Ms. Johnson's symptoms, Dr. White referred her to orthopedic surgeon, Edward Long, M.D., and pain management specialist, Roy Greene, M.D., for further evaluation.

Ms. Johnson presented to Dr. Long on November 11, 2009, reporting increased back pain with radiation into her upper and lower extremities and continued headaches and vertigo. Examination revealed tenderness to palpation, decreased range of motion, diminished sensation in the right L5-S 1 dermatome, and positive straight leg test. He diagnosed Ms. Johnson with cervical strain and right lumher radiculitis.

Treatment recomendations following examination included lumber epidural steroid injections and possible lumbar discography.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Automobile Accident Victim From Sacramento Files Lawsuit For Spinal Injuries, Part 3 of 4" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

PLAINTIFF'S SPECIAL DAMAGES cont.

Ms. Johnson continued her chiropractic care with Michael White, D.C. at Valley Chiropractic on May 14, 2009. Ms. Johnson presented at that time with worsening neck and back pain with radiation into her shoulders and arms. She also complained of daily headaches, jaw pain, vertigo, and difficulty sleeping. Examination of her cervical spine revealed discomfort and tenderness to palpitation at C1-C7. Dr. White noted the presence of trigger points in the upper trapezius, myofascial sternocleidomastoid muscles and suboccinpitl areas. Examination of Ms. Johnson's thoracic spine revealed tenderness to palpitation at T1-T12 and trigger points in the erector spinae muscles, and myofascial triggers points of the trapezius bilaterally. Spurlings and Soto Hall tests produced positive results. Ms. Johnson's lumbar spine examination revleaed spasm of the erector spinae bilaterally, tenderness at L1 through L5 and S1. Straight leg test was positive in both right and left legs, Braggards sign test was positive bilaterally, and Patrick-Fabre test was positive on the left and right.

Dr. White diagnosed Ms. Johnson with a concussion, cervical sprain/strain injuries with somatic dysfunction, thoracic sprain strain with dysfunction, lumbar sprain/strain injuries with ligament instability, rotator cuff sprain/strain, medial epicondylitis, and vertigo/dizziness. He recommended chiropractic manipulation and physiotherapy in the form of heat and electrical stimulation.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Car Accident Leaves Sacramento Woman With Catastrophic Back Injuries, Part 2 of 4" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

PLAINTIFF’S TRIAL BRIEF

PARTIES

Plaintiff Monica Johnson is represented by the XYZ Law Group. Defendants Theresa Black and James Black are represented by ABC Law Group.

BRIEF STATEMENT OF FACTS

This action arises out of injuries that Monica Johnson suffered in an automobile vs. automobile accident that occurred on March 31, 2009. At the time of the accident, Ms. Johnson was driving her 1998 Toyota Camry eastbound on Highway 50 just east of Watt Avenue in the city of Sacramento, California. Defendant, James Black was driving his 2007 BMW X-5, failed to stop for traffic and struck Ms. Johnson's vehicle from behind in a heavy impact. A copy of the Traffic Collision Report is attached hereto and it indicates Mr. Black was clearly at fault. Ms. Johnson's vehicle was totaled as a result of the accident. Photographs of the damage to Ms. Johnson's Camry and a copy of the repair estimate are attached.

PLAINTIFF'S CONTENTION

Liability is not an issue.

PLAINTIFF'S SPECIAL DAMAGES

Despite being properly restrained, Ms. Johnson struck her head on the interior of the vehicle during the accident and experienced neck and back pain.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Woman Severely Injured In Car Accident, Part 1 of 4" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

DR. LEE’S RELIANCE ON CASES FOCUSED POST-JUDGMENT OR -VERDICT IS MISPLACED SINCE PLAINTIFF NEED NOT PROVE THAT HE SHOULD BE AWARDED PUNITIVE DAMAGES AT THIS STAGE OF THE LITIGATION

Dr. Lee relies on Ebaugh v. Rabkin, (1972) 22 Cal.App.3d 891, which is not applicable to Plaintiff's First Amended Complaint. Ebaugh concerned the reversal of a jury's award of punitive damages because the evidence was insufficient to support the verdict for punitive damages against the employee and employer. There was also prejudicial error because one of the jury instructions permitted punitive damages against the employer if it found the employee was acting in a willful, reckless or wanton manner without regard to the employer's conduct in directing or ratifying the employee's actions. Id. at 895-896. Ebaugh does not apply to this stage of the litigation since it was an appeal of a jury verdict at trial. The standard for meeting the burden of proof to overturn a jury verdict is certainly different from the notice pleading requirements of California law.

Dr. Lee cites the following cases, all after judgment, verdict or nonsuit, which do not support granting her motion to strike since the cases do not concern the pleadings stage of litigation: American Airlines, Inc. v. Sheppard, Muffin, Richter & Hampton (2002) 96 Cal.App.4th 1017.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Car vs. Pedestrian Accident Caused By Fatigued Sacramento Physician, Part 11 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

PUNITIVE DAMAGES ARE ALLOWABLE IN THIS NEGLIGENCE ACTION

The California Supreme Court has determined there are circumstances under which punitive damages can be awarded in unintentional tort actions. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004. In particular, the Supreme Court has upheld punitive damages in cases of negligent driving. See Peterson v. Superior Ct. (1982) 31 Cal.3d 147; Taylor v. Superior Ct. (1979) 24 Cal.3d 890, 894.

In Taylor, the Supreme Court explained the availability of punitive damages to plaintiffs in motor vehicles tort actions:

A conscious disregard of the safety of others may constitute malice within the meaning of Section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully [sic] and deliberately failed to avoid those consequences.Id. at 895. (emphasis added.) Taylor and Peterson are directly applicable to this case. Plaintiff's prayer for punitive damages, which is based on Dr. Lee's inarguable awareness of the probable dangerous consequences of operating a vehicle under fatigue and while asleep and her actions of deliberately failing to avoid the dangerous consequences by driving in a fatigued state, is undeniably supported by California law.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Negligent Sacramento Doctor Hits Pedestrian On Sidewalk With Her Car, Part 10 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

The First Amended Complaint does not contain mere allegations that the Defendant's actions were carried on with willful and conscious disregard of the rights of others. In this regard, Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 and Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 163, are inapposite to the present case. Unlike Brousseau and Grieves, Plaintiff did not merely allege that Defendant's actions were "willful" or "malicious." Plaintiff refrained from making the sort of conclusory arguments that were scorned in Brousseau and Grieves, The claim for punitive damages in Brousseau and Grieves were not based on specific facts. In this case, Plaintiff pled approximately four pages of detailed facts that allege Dr. Lee acted without regard for the safety of others in her operation of a vehicle while sleeping.

As alleged throughout the First Amended Complaint, Dr. Lee was incompetent and unfit to safely operate a vehicle because she was fatigued. From her residency training, she knew that she was a foreseeable threat to the health and safety of the public if she drove in a fatigued or sleepy condition. She deliberately was disregarding the high probability that she would fall asleep behind the wheel and cause permanent harm to another person.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sleep-Deprived Sacramento Physician Strikes Pedestrian With Car, Part 9 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

Further, the case law cited by Dr. Lee does not support her argument that negligence or recklessness is insufficient to warrant punitive damages. Defendant's citation, to Tomaselli v. Transamerica Ins. Co., (1994) 25 Cal.App.4th 1269 actually supports Plaintiff's claim. The Court in Tomaselli held that punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. Id. at 1287.

In this case, Dr. Lee's actions of driving while asleep, when she knew or should have known of the dangerous probability of causing a motor vehicle accident, Were reprehensible. She knew that she was fatigued. She was trained to avoid driving while fatigued. She likely dozed off while driving before falling asleep - yet she continued to drive the trip from Sacramento to El Dorado Hills. She also blatantly violated multiple motor vehicle safety codes and a regulation prohibiting the operation of a vehicle while the driver's alertness is impaired by fatigue. See 13 C.C.R. 1214. Dr. Lee should not have operated the motor vehicle under the conditions, and her decision to do constitutes malice and oppression.

Since Plaintiff's allegations are based on facts and not speculation, the present case is consistent with the decisions cited in Defendant's moving papers, i.e., College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 [plaintiffs failed to plead facts regarding defendants' intent to injure or facts of vile or despicable conduct]; Colonial Life &Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 792 [a defendant may be liable for punitive damages if it acts with a conscious disregard of the plaintiff's fights]; Lackner v. North (2006) 135 Cal.App.4th 1188 [summary adjudication of plaintiff's punitive damages claim was proper since plaintiff's evidence failed to show defendant acted despicably].

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Reckless Sacramento Physician Strikes Man With Car, Part 8 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

PLAINTIFF HAS PLED SUFFICIENT FACTS TO ESTABLISH THAT DR. LEE'S CONDUCT WAS DESPICABLE AND WITH A WILLFUL AND CONSCIOUS DISREGARD FOR THE SAFETY OF PLAINTIFF

Plaintiff seeks punitive damages against Dr. Lee pursuant to Civil Code Section 3294, which states in pertinent part:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(c)(1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(c)(2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Punitive Damages Sought By Sacramento Auto Accident Victim, Part 7 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

The majority of the new allegations in the First Amended Complaint describe the residency training that Dr. Lee should have heeded in order to avoid causing the subject incident. Dr. Lee was provided training at National Hospital, prior to the incident, about the specific risk posed to the public by fatigued or sleep-deprived medical residents. The article "Extended Work Shifts and the Risk of Motor Vehicle Crashes Among Interns" published by the New England Journal of Medicine on January 13, 2005, was just one of many scientific journal articles offered to Dr. Lee on the subject. The collective information regarding Dr. Lee's training is directly relevant to the action and establishes the fact that Dr. Lee was acutely aware of the dangerous risks posed to the public, including Plaintiff, by driving home in a fatigued or sleepy condition after being awake for a continuous 18 hours. Plaintiff has sufficiently, and with much detail, alleged the various ways in which Dr. Lee acted with malice and oppression by disregarding her training on a multitude of levels.

The present case is highly distinguishable from Austin v. Regents of Univ. of California (1979) 89 Cal.App.3d 354, where the Court held, ... the allegations in plaintiff's complaint are purely conclusory. Here, Plaintiff's First Amended Complaint is replete with facts establishing how Dr. Lee acted with a willful and intentional decision to operate a motor vehicle in a fatigued, sleepy and impaired condition. Her conduct was despicable in light of her residency training at National Hospital. Also, National Hospital provides its residents with alternative means of travel, such as a shuttle, bus, or taxi vouchers, but Dr. Lee willfully and knowingly chose to drive home with a conscious disregard of the rights or safety of Plaintiff and the public.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Car Accident Victim Shows Evidence Of Egregious Conduct By Local Doctor, Part 6 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

ARGUMENT

LEGAL STANDARDS ON MOTION TO STRIKE

Motions to strike are not favored. Weil & Brown, Civil Procedure Before Trial, § 7:197. The policy of California law is to construe the pleadings liberally ... with a view to substantial justice. C.CP. § 452.

Plaintiffs First Amended Complaint meets the notice pleading requirements under California law. What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkins v. Superior Ct. (1981) 117 Cal.App.3d 1, 6. Specificity is not required in the Complaint because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading. Ludgatelns. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App.4th 592, 608. The First Amended Complaint adequately informs Dr. Lee of the damages sought and the legal bases for those damages. Since Plaintiff has met the notice pleading requirements, Dr. Lee's motion to strike should fail on all accounts.

PARAGRAPH 32 SHOULD NOT BE STRICKEN SINCE PLAINTIFF'S ALLEGATIONS ARE FACT-SPECIFIC AND ESTABLISH IN DETAIL HOW DR. LEE ACTED WITH MALICE AND OPPRESSION

Defendant seeks to mislead the Court by alleging that Plaintiff's claim for punitive damages is conclusory and based solely on the new fact alleged that Dr. Lee was awake for at least 18 hours prior to the incident. Dr. Lee claims that Plaintiff's new allegations contained within paragraphs 31 and 32 do not alter the factual scenario of the case, but that is exactly what the new allegations have done.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Hospital Liable For Injuries Caused By Doctor In Car Accident, Part 5 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

●Defendant Susan Lee, M.D., failed to use reasonable care appropriate to avoid driving on public roads, streets and highways in a sleep-deprived and fatigued state and also acted wantonly, recklessly and with malice and oppression at the time of the incident. She admitted to the police at the scene of the incident that she had fallen asleep at the wheel.

Also, in Paragraph 32 Plaintiff pled a detailed factual account of Dr. Lee's training at National Hospital, which was taken from the deposition of Caleb Smith, M.D., who was Dr. Lee's superior at National Hospital and administered many of the residency trainings. These facts build the foundation for Dr. Lee's malicious and oppressive conduct on the date of the incident. These facts take up approximately four pages of the entire First Amended Complaint. In the interest of brevity, Plaintiff has not repeated the lengthy allegations herein.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Doctor Hits Pedestrian After Ignoring Signs Of Extreme Fatigue, Part 4 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

PLAINTIFF HAS SUFFICIENTLY ALLEGED FACTS WHICH ESTABLISH MALICE AND OPPRESSION ON THE PART OF DR. LEE

Plaintiff specifically pled a variety of facts - not conclusions - supporting the allegations of malice and oppression against Dr. Lee.

The following facts pertaining to Dr. Lee's conduct were pled, providing sufficient basis for punitive damages:

●At said time and place, Defendant Susan Lee, M.D,. was driving the SUBJECT VEHICLE east on University Road. Defendant Susan Lee, M.D., knowingly and intentionally got behind the wheel while fatigued, sleepy, and in an impaired condition, fell asleep while driving and drove the SUBJECT VEHICLE east on University Road and up and onto the raised sidewalk and struck the pedestrian Plaintiff from behind.

●Defendant Susan Lee, M.D., failed to use reasonable care while negligently, and also wantonly and recklessly with malice and oppression, knowingly and intentionally got behind the wheel while fatigued, sleepy and in an impaired condition, fell asleep while driving and drove the SUBJECT VEHICLE east on University Road and up and onto the raised sidewalk and struck the pedestrian Plaintiff from behind. (See Part 4 of 11.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

Dr. Lee seeks to strike the following portions of Plaintiff's First Amended Complaint: (a) portions of Paragraph 6, line 15 regarding Defendant's malicious and oppressive behavior; (b) Paragraph 32 regarding the details of Dr. Lee's training at National Hospital; (c) Paragraph 42 regarding Dr. Lee's malicious and oppressive conduct; and (d) Plaintiff's prayer for punitive damages against Dr. Lee. Her motion to strike fails on all counts because Plaintiff's allegations are allowed under the negligence theories pled in his First Amended Complaint and he has pled sufficient facts to justify seeking punitive damages.

STATEMENT OF FACTS

FACTUAL ALLEGATIONS THAT SUPPORT PRAYER FOR PUNITIVE DAMAGES

On June 16, 2009, shortly before 1:00 p.m., Plaintiff, a pedestrian, was jogging on the eastern sidewalk of University Road, near the intersection of Small Way, in El Dorado Hills. Dr. Lee was driving east on University Road. Knowingly and intentionally driving in a fatigued and sleepy condition, Dr. Lee fell asleep while driving and drove up and onto the raised sidewalk and struck Plaintiff from behind. Plaintiff flew violently onto the hood and smashed into the. windshield, then up onto the roof. (Id.) Plaintiff was carried approximately 59 feet east before being thrown off the top of the vehicle. (Id.) Dr. Lee, while still asleep, then dragged Plaintiff approximately 38 feet where Dr. Lee ultimately ran over him again.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Drowsy Doctor Hits Sacramento Man On Sidewalk, Part 2 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

Plaintiff's Opposition to Defendant Susan Lee, M.D.'s Motion to Strike Punitive Damages from First Amended Complaint

INTRODUCTION

On June 16, 2009, at approximately 1:00 p.m. in the afternoon, Defendant Susan Lee, M.D., fell asleep while driving and struck down the Plaintiff, David Hall, with her car as he was jogging on the sidewalk. Dr. Lee caused David to sustain serious and permanent injuries, including: traumatic brain injury, post-traumatic stress disorder, thoracic spine fractures, left fibula fracture, multiple lacerations, severe abrasions (road rash) from his upper back, arms, knees, thighs and toes, and contusions.

As part of her training at National Hospital, Dr. Lee was taught about the dangerous probable consequences of operating a motor vehicle while sleepy or fatigued. Despite the training, Dr. Lee, who is to do no. harm as a physician, left National Hospital where she had been working and awake for at least 18 consecutive hours, and drove home in a sleepy and fatigued condition. She was significantly impaired and unable to drive home safely.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Pedestrian Hit By Fatigued Driver, Part 1 of 11" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

In Galanek, the court reiterated a maxim of jurisprudence that is apropos here: A fundamental principal of our legal system is that "no one can take advantage of his own wrong," citing Civil Code section 3517. Galanek v. Wismar at 1428. Similarly here, XYZ, Ins. Co., cannot be allowed a procedural advantage on liability due to its destruction of critical evidence.

Unlike the cases of inadvertence above, here XYZ, Ins. Co., did not lose or misplace evidence - it consciously destroyed it, knowing that this was a serious injury claim and that litigation was likely to follow. Further, XYZ, Ins. Co. misrepresented to plaintiff's counsel that the Brown vehicle had never been inspected by their experts, when in fact such an inspection had taken place weeks before. And moreover, XYZ, Ins. Co. was placed on written notice within six weeks from the date of this accident that plaintiff demanded that the Brown vehicle be preserved for inspection by experts. As the law makes clear: [T]he court has broad powers ... to make whatever just orders are necessary to remedy the spoliation. Cedars-Sinai, supra, 18 Cal.4th at 8 (emphasis added). This court should exercise those powers and grant the relief sought so that Ms. Black is not severely prejudiced from recovering the full measure of her damages from defendants for her severe injuries.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Plaintiff's Car Destroyed By Insurance Company After Accident, Part 7 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

It is anticipated that the defendant will claim that the destruction of the vehicle was accidental or non-intentional. Even if the court finds that defendant Brown's spoliation of evidence was inadvertent, the court should still grant plaintiff's requests for evidentiary sanctions: where a party inadvertently destroys evidence, the court may issue sanctions intended to level the playing field or even up the score. Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3rd 877, 883-884. In this case, an expert witness inadvertently lost a failed drive shaft. The court reviewed numerous early California authorities and determined that, None of these authorities suggests a willfulness requirement for violations of subdivision (b)(2). Puritan Ins. Co., 1717 Cal.App.3rd at 884.

In Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1427, the court properly shifted the burden of proving lack of causation to the defendant attorney who negligently permitted a storage facility to destroy a defective automobile before either party could perform an inspection. The destruction of evidence made it impossible for plaintiff to prove that defendant's negligence was the cause of her losses. (Ibid.) In addition, there is no intentional standard set forth in section 2023.030, merely that such sanctions can be issued against anyone engaging in conduct that is a misuse of the discovery process. Destroying key evidence under the facts as outlined above is surely a misuse of the discovery process.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Driver Suffers Traumatic Brain Injury In Car Accident, Part 6 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

DEFENDANT'S SPOLIATION OF CRITICAL EVIDENCE NECESSITATES AN ORDER TO PRECLUDE THE DEFENDANT'S ACCIDENT RECONSTRUCTION EXPERTS FROM TESTIFYING

The guiding California Supreme Court case controlling spoliation of evidence is Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1. In Cedars, plaintiff brought a medical malpractice action arising out of a birth injury. During discovery, the hospital was unable to locate key medical records pertaining to the birth. The plaintiff then filed a separate cause of action of intentional spoliation of evidence. The court began the opinion by noting the serious affront to justice that is caused by destroying evidence:

The intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation. 18 Cal.4th1, 4.

In the opinion, although the court dispensed with a specific cause of action for intentional spoliation of evidence, it confirmed the broad powers that the court has in dealing with issues such as are presented in this case.

Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request. The sanctions under Code of Civil Procedure section 2023 are potent.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Car Accident Defendant Destroys Critical Evidence, Part 5 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

XYZ, INS. COMPANY’S DESTRUCTION OF EVIDENCE HAS SEVERELY PREJUDICED THE ABILITY OF PLAINTIFF TO ESTABLISH CERTAIN FACTS CRITICAL TO LIABILITY ISSUES

Defendant's decision to destroy their insured's vehicle and then to misrepresent that it had never been inspected by their experts, has caused serious prejudice to plaintiff's ability to prove certain issues extremely important to liability. Such issues include:

(1) Crush analysis that would allow plaintiff's experts to more accurately assess the speed of defendant Brown's vehicle when he smashed into plaintiff's stalled car on the freeway.

(2) Determining the speed of defendant Brown's vehicle would also be important in addressing defendant's perception and reaction times when he observed the plaintiff's stalled vehicle prior to this accident.

(3) The distance of illumination from defendant Brown's headlights in front of him is also a factor that in part is based upon his rate of speed.

(4) The Delta V that all accident reconstructionists use in determining the change of velocity, which equates into the force of impact and is also a fundamental calculation for purposes of accident reconstruction.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Automobile Crash Leaves Sacramento Woman With Serious Brain Injuries, Part 4 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Shortly after this accident occurred, XYZ, Ins. Co. retained ABC Engineering, Inc., and directed them to conduct an inspection of both of the involved vehicles. As the report from defense counsel confirms, an inspection by ABC's engineer of the defendant's 2008 Nissan 350Z occurred on August 4, 2009. Thus, despite the fact that XYZ, Ins. Co. was aware of a serious injury claim within weeks of this accident, and was obviously aware of the importance of having engineers inspect the involved vehicles, a conscious decision was apparently made to destroy the defendant's vehicle and make it unavailable for inspection by plaintiff's expert. Consequently, the specific purpose of this motion is to preclude any defense experts from testifying as to an accident reconstruction of the subject accident because of their significant advantage in having their engineers personally inspect the defense vehicle, while depriving plaintiff of a similar opportunity.

CHRONOLOGY OF RELEVANT EVENTS:

June 17, 2009: Date of the subject accident.

July 17, 2009: Multiple telephone conversations between XYZ, Ins. Co. and Robyn Black's parents about the accident and her severe injuries.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Experts Battle In Sacramento Car Accident Lawsuit, Part 3 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Within approximately two weeks after this accident, defendant Brown's insurance company, XYZ, Ins. Co., made contact with plaintiff's parents. XYZ, Ins. Co. was advised as to the serious injuries suffered by plaintiff during numerous telephone conversations that took place with the Black family and XYZ, Ins. Co.'s adjuster at that time, Kyle Hill. Additionally, Mr. Hill sent correspondence on behalf of XYZ, Ins. Co. to the Black family requesting authorizations to obtain medical records, thus further evidencing the fact that XYZ, Ins. Co. was fully aware that injuries were sustained. XYZ, Ins. Co. obviously recognized the importance of inspecting the involved vehicles, as reflected by their correspondence of July 31, 2009, to the plaintiff asking permission to have their "accident reconstruction engineer" inspect the Black's 2007 BMW 325i that was involved in this accident.

In early August of 2009, this law firm was retained to represent Robyn Black. Correspondence was sent to the adjuster Kyle Hill, which contained a paragraph as follows:

"I also request that you preserve your insured's vehicle for inspection purposes. I am sure you will do all within your power to preserve any relevant evidence for this case, as required by California Penal Code section 135."

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Auto Accident Leaves Sacramento Woman With Brain Injury, Part 2 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Plaintiff's Motion in Limine to Exclude Defendant XYZ, Ins. Co.’s Accident Reconstruction Expert Testimony

INTRODUCTION

This case arises out of a major automobile collision that occurred on Highway 50 westbound near the Sunrise exit on June 17, 2009. At that time, Ms. Black's vehicle became disabled and stalled on the freeway and was struck with great force by defendant's vehicle. The collision resulted in extremely serious injuries, including a fractured neck and a traumatic brain injury.

The purpose of this motion in limine is to exclude accident reconstruction testimony by defendant's experts due to defendant's insurance company's intentional or negligent spoliation of evidence, namely the defendant's vehicle. As is explained in more detail below despite a specific written request to preserve such evidence, the defendant's vehicle was not only destroyed but plaintiff's counsel was misled by defendant's insurance adjuster as to the availability of the vehicle for inspection by plaintiff’s experts.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Woman Suffers Catastrophic Injuries In Car Accident, Part 1 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

SIMILAR ACTION DOES NOT REQUIRE SHARED EXPERTS

Dr. Brown and Mr. West are not the same party. They are not married, or even related. They are not represented by the same attorney. One is the purchaser of the tire, the other is not One has privity of contract with Valley Chevrolet and The Auto Center, the other (West) does not. The defendants have cross complained against Dr. Brown for the damages claimed by Mr. West.

Dr. Brown has not hired Mr. West's experts (save, Mr. Goldberg), and has no contract or agreement with those experts. Either plaintiff could settle with one or more of the defendants leaving the other plaintiff to go it alone.

Nevertheless, XYZ argues that Dr. Brown should be forced to withdraw Drs Bakstrom and Hall, and rely upon Mr. West's experts instead. There is no compelling reason to do so. Dr. Brown has identified a perfectly reasonable number of experts, and the expected testimony of those experts is expected to overlap barely, if at all.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Woman Fights Tire Company After Tires Cause Car Accident, Part 5 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

None of the expert witnesses listed above has been deposed by the defendant, despite the fact that this same defendant sought a continuance of the December 2009 trial in order to have more time to conduct expert discovery. XYZ contends, essentially, that either Dr Bakstrom or Dr. Hall must go, to save time and money, without actually having heard a word from either expert. Plaintiff Brown contends that both Dr. Bakstrom and Dr. Hall are essential to her case against the formidable, well financed, and experienced corporate defendant (as well a the other two defendants - Valley Chevrolet and The Auto Center).

It is worth remembering that XYZ designed, manufactured, distributed, and marketed the subject tire. Much of the discovery and investigation associated with its defense was incidental to its primary business - making, marketing, and selling tires. Dr. Brown, a retired dentist, has had to start from scratch, using experts who have not had the benefit of unlimited access to XYZ 's wealth of resources.

Dr. Brown needs both Dr. Hall and Dr. Bakstrom. Even if there were some overlap subject matter, both of these experts would still need to be deposed because there are areas o their testimony which do not overlap at all (i.e. accident reconstruction, chemical composition and decomposition). Since both experts are necessary and would still testify, even if any hypothetical overlap were excluded at trial, plaintiff assumes that the defendants would take the experts' depositions.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Tire Blow-Out Causes Sacramento Auto Accident, Part 4 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

In her expert witness disclosure statement Dr. Brown identified seven (7) retained experts Of these seven, two were voluntarily withdrawn by the plaintiff, leaving five. Of those five:

Paul Smith, M.D. , is a neurologist designated to testify regarding Dr. Brown's head injury and dementia. None of the other retained experts are qualified to provide expert testimony on any medical/neurological issue.

Alexa Chong, R.N., is a home health care expert, designated to testify regarding the value of the services rendered to Dr. Brown by her family members. No other expert designated by any party is qualified to give such testimony.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Sven Bakstrom, Ph.D., is an engineer who will give testimony regarding his reconstruction of the subject collision and he analysis of the failure of the tire. No other expert designated by Dr. Brown is qualified to perform accident reconstruction, and no other expert is a mechanical engineer.

Bob Hall, Ph.D., is a professor of chemistry. Dr. Hall will give testimony regarding the chemical factors associated with the failure of the subject tire. Dr. Hall is not an accident reconstructionist. The focus of his testimony will be on the chemical factors that lead to tire failure by age.

Continue reading "Tire Experts Find Fault With Manufacturer In Sacramento Auto Accident, Part 3 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

What is particularly egregious about XYZ 's failure to timely file and serve this motion is that XYZ attempted to have similar motion heard, ex parte, on December 4, XYZ withdrew the motion when its motion to continue the trial date was granted. Still, it is not as though this defendant, whose counsel swore that the proposed motion was attached to a declaration filed on March 25, was prompted by surprise or urgency in drafting this motion.

XYZ had a draft of the motion ready to file on December 4, 2009, and proposed version to attach to a declaration on March 25, yet the defendant declined to file and serve the motion until after the statutory deadline.

XYZ 's motion raises no minor issue. The defendant seeks to exclude the entirety of certain of the plaintiffs experts' testimony before any party has even heard the substance of the testimony. XYZ claims excessive consumption of time (a claim which is proved false herein), yet the same defendant could not manage to provide the court and opposing counsel with adequate notice.

The court should deny XYZ 's motion for failure to comply with C.C.P. §1005(b) if not also for the substantive reasons stated below.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Car Accident Defendant Tries To Limit Victim's Medical Experts, Part 2 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Plaintiff Anna Brown's Objection and Opposition to Defendant XYZ Tire, Inc.'s Motion for a Protective Order Limiting the Number of Plaintiffs' Experts

PRELIMINARY OBJECTION

Defendant XYZ Tire, Inc., failed to give adequate notice, or to file its motion, according to the deadlines provided in California Code of Civil Procedure Section 1005(b). C.C.P. §1005(b) requires that the defendant's motion and supporting papers be filed and served at least 16 court days before the hearing. The hearing is scheduled for April 23, but the moving papers were filed on April 2, only fourteen (14) court days before the hearing. The moving papers, delivered by express mail, should have been served no later than March 28. Instead they were served on Friday, April 2, and delivered on Monday, April 5, more than a week after plaintiffs’ counsel should have received them.

On March 26, XYZ brought an ex parte application to schedule the hearing on this motion for a date between April 16 and April 23, 2010. XYZ 's counsel did not request an order shortening time. To the contrary, defense counsel Allison Greene observed that the motion could be served with "normal notice."

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Car Accident Victim Fights For Medical Experts, Part 1 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

A motion in limine seeking to preclude any reference to corporate defendant's nonprofit status was properly granted where such status was not relevant to the issues and might improperly curry favor with the jury. See Notrica v. State Comp. Ins. Fund (1999) 70 Cal. App. 4th 911, 933-935. As such, the mere mention of plaintiff being a "war hero" or any derivative thereof is substantially prejudicial to the defendants as a jury may be inclined to gamer sympathy and thereby obtain an award to plaintiff solely because of his status as a war hero and not based upon whether or not XYZ was responsible in any manner for the accident or the extent of the injuries sustained in the August 25, 2008 accident. Therefore, pursuant to Evidence Code §352, such evidence must be excluded from trial.

Finally, evidence pertaining to Mr. West being a veteran of WWII and being involved in two of the most well known military battles is not admissible as character evidence for two reasons. First, evidence of character, other than for honesty, is inadmissible to attack or support the credibility of a witness. Evidence Code §786. Here, Mr. West's military history does not in any way demonstrate his propensity to tell the truth. Second, even if it did, evidence of a witness's good character for credibility is inadmissible unless evidence of the witness's bad character has first been admitted. Evidence Code §790. As such, Mr. West military history must also be excluded as improper character evidence.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Car Accident Victims File Suit Against Tire Company, Part 6 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Evidence Code §352 allows a Court to exclude otherwise relevant evidence where there is a substantial danger that the probative value of the inclusion of such evidence will be outweighed by the danger of undue prejudice. People v. Cardenas (1982) 31 Cal. 3d 897, 904. As the Court in Cardenas further explained, §352 provides grounds for excluding evidence that is inflammatory. 5 Id. at 906. Section 352 requires that the trial Judge to balance the probative value of the offered evidence in comparison to its potential of prejudice, undue consumption of time and confusion. Jefferson, Cal. Evidence Benchbook (1972) comments, §22.1, pg. 288.

The California Supreme Court elaborated on what undue prejudice connotes and explained such as evidence that carries with it a danger of evoking emotional bias against a defendant while offering little probative value. People v. Gionis (1995) 9 Cal. 4th 1196, 1214. Similarly, evidence that would confuse the issues or work to mislead the jury should be excluded pursuant to Section 352. People v. Milner (1988) 45 Cal. 3d 227, 238; Ehrhardt v. Brunswick, Inc. (1986) 186 Cal. App. 3d 734, 740.

In the instant case, self serving statements pertaining to plaintiff's military service or any evidence that plaintiff was a war hero or any derivative thereof is pure character evidence being offered for the explicit purpose of evoking sympathy for plaintiff in the minds of the members of the jury.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Defendant In Sacramento Car Accident Case Fights Use Of Plaintiff's War Hero Status, Part 5 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

THIS COURT MAY EXCLUDE IRRELEVANT AND SUBSTANTIALLY PREJUDICIAL EVIDENCE IN ADVANCE OF TRIAL BY WAY OF A MOTION IN LIMINE

The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. FMC Corp. v. Plaisted & Cos. (1998) 61 Cal. App. 4th 1132, 1168. The Court has the inherent power to grant a motion in limine to exclude any kind of evidence which could be objected to at trial, because said evidence is irrelevant or subject to discretionary exclusion as being unduly prejudicial or a piece of evidence that will mislead the jury. Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451; Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d 272, 288. One of the main purposes of motions in limine is to properly narrow the issues for trial and preclude irrelevant evidence from flooding the courtroom. The advantage of such motion is to avoid the obvious futile attempt to "unring the bell" in the event a motion to strike is granted in the proceeding before the Court related primarily to irrelevant and prejudicial evidence. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 337.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Evidence Code §350 regulates that only relevant evidence is admissible. This is because relevancy is not an inherent characteristic of evidence but exists as a relation between an item of evidence and a proposition sought to be proved. See McCormick on Evidence, 3rd, § 185. Accordingly, evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of the action. Evidence Code §210.

Continue reading "Sacramento Auto Accident Leads To Lawsuit for Defective Tires, Part 4 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Plaintiffs are claiming the tire was defective solely because of its chronological age. Based upon this, plaintiffs claim that XYZ should have warned Ms. Brown that the tire was too old to still be in service. XYZ disputes these claims and contends that the tire failed because it was poorly maintained and had sustained impact damage before this accident. Defendants also contend that Ms. Brown stepped on the accelerator rather than applying her brakes and thereby drove her van into the telephone irrespective of the tire failure. XYZ also disputes the nature and extent of plaintiff’s claimed injuries stemming from this auto accident.

Mr. West and his counsel have asserted on several occasion in this litigation including multiple times in various pleadings submitted to the court including their mandatory settlement conference briefs that Mr. West was a veteran of Pearl Harbor and D-Day, which occurred December 7, 1941 and June 6, 1944 respectively. In fact, when Mr. West appeared for the two Mandatory Settlement Conferences in this case he wore a Pearl Harbor cap. Obviously such references and events have arisen without any relation to this subject accident. Since evidence or testimony of Mr. West's military service is irrelevant and sought solely to garner sympathy, it must be excluded. (See Part 4 of 6.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Obviously, plaintiffs' interest in including such evidence is to attempt to curry favor with and sympathy from the jury despite this evidence having no connection with this action. Accordingly, evidence of Mr. West's service in the military and his status as a veteran of WWII must be excluded on the grounds that such evidence: (1) is irrelevant to this action pursuant to Evidence Code section 350; (2) is an improper attempt to prove good character pursuant to Evidence Code section 1001; and (3) will necessitate undue consumption of time, create substantial danger of undue prejudice, and confuse or mislead the jury pursuant to Evidence Code section 352.

This motion is made upon this notice, the following Memorandum of Points and Authorities, and upon all books and papers found within the Court's file, and upon all such other evidence, oral or documentary, as may be presented at the hearing of this motion.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS

This is a personal injury case brought by Anna Brown and Alex West, arising out of a single vehicle accident that occurred on August 25, 2008, in the early afternoon. The accident occurred in a residential area in the city of Sacramento, California.

Continue reading "Multi-Car Accident Injures Two People From Sacramento, Part 2 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident lawsuit and its proceedings.)

Defendant XYZ Tire, Inc.'s Motion in Limine No. 10 to Exclude Reference to Plaintiff Owen West's Military History or References to Him as a "War Hero"

XYZ Tire, Inc. (hereinafter, "XYZ") moves this court in limine for an Order precluding plaintiff Owen West, his attorneys, and all witnesses and experts from referring to, commenting upon, or otherwise attempting to introduce at trial any and all testimony or evidence pertaining to plaintiff Owen West being a veteran of World War II, including references to his involvement in Pearl Harbor and D-Day or attempting to portray plaintiff as a "war hero" or "patriot," or any variation or derivative thereof throughout the course and scope of this tria,l pursuant to Evidence Code §§ 210, 350 and 352.

The admission of evidence or testimony concerning Owen West being a veteran of World War II and his involvement in two of the most well known military battles, D-Day and Pearl Harbor, both of which occurred over a half-century ago (66 and almost 69 years respectively) cannot possibly be relevant to any issue in the present action.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento War Veteran Involved In Car Accident, Part 1 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

CCP 998(c)(2)(A) deals with the situation where a defendant's 998 offer to compromise is not accepted by a plaintiff and that plaintiff does not obtain a more favorable award than the defendant's 998 offer to compromise. In this situation CCP 998(c)(2)(A) states, [i]n determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post-offer costs. The court in Bennett v. Brown (1963) 212 Cal.App.2d 685 explained the rationale for this rule excluding plaintiff's post offer costs when determining if their award is more favorable than the defendant's 998 offer. To hold otherwise would enable plaintiff to dramatically increase its postoffer cost for the sole purpose of increasing the likelihood that its final judgment would exceed defendant's offer. Bennett v. Brown, supra, 212 Cal.App.2d at p. 688.

As previously discussed, this case is distinct from the situation in Bennet. In this case, the plaintiff's 998 offer to compromise was rejected by the defendants. Therefore the Bennet rationale does not apply. Moreover, there is nothing in CCP 998 that excludes postoffer costs in situations where a plaintiff's offer is not accepted by the defendants. CCP 998 provides the following for these situations:

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Car Accident Defendant Fights Litigation Costs After Losing At Trial, Part 7 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

MS. HILL IS ENTITLED TO RECOVER EXPERT WITNESS FEES SINCE MS. HILL'S RECOVERY EXCEEDED HER SECTION 998 DEMAND

On January 6, 2010 Ms. Hill made a section 998 offer to compromise in the amount of $18,000. This offer was rejected by defendants. Section 998, which reflects this state's policy of encouraging settlements (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 270), creates a financial incentive to encourage the parties to make and accept reasonable settlement offers. (Berg v. Darden (2004) 120 Cal.App.4th 721, 726-727.) Marcey v. Romero (2007) 148 Cal.App.4th 1211, 1215-1216. It is undeniable that Ms. Hill's 998 offer was reasonable. It was only $1,550 more than the jury verdict. Ms. Hills offer was far more reasonable than defendants's 998 offer of $7,500.

Pursuant to CCP § 998 when determining if the defendants did not obtain a more favorable judgment than Ms. Hill's 998 offer Ms. Hill is entitled to add to her jury verdict both pre and post offer statutorily recoverable costs. Stallman v Bell (1991) 235 Cal.App.3d 740, 748. The court in Stallman provided the following rationale:

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Woman Must Fight For Costs Despite Favorable Car Accident Verdict, Part 6 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Depositions Costs

Each party took only one non-expert deposition in accordance with CCP § 94(b). Ms. Hill did not take the deposition of defendants experts and wold have stipulated to defendants taking the depositions of plaintiff's two experts, consistent with CCP § 95(b). Accordingly, the deposition costs would have been the same had the case been brought in limited jurisdiction.

Trial Costs: Jury and Court Reporter

Whether in limited or unlimited jurisdiction the facts of the case would have been the same and therefore the trial would have taken the same amount of time. Defendants have provided no authority that Ms. Hill would have been restricted in the number of witnesses she would have been allowed to call at trial had she brought the case in limited jurisdiction. If the jury trial would have been the same length in limited jurisdiction, then the jury fees, jury food and court reporting fees would have been the same wether the case was in limited or unlimited jurisdiction.

Service of Process Costs

Ms. Hill includes costs for service of process for serving three individuals: Sophia Lee, John Lee, and Sgt John Smith. Once again, all three of these individuals would have been served whether the case was in limited or unlimited jurisdiction. Therefore the costs associated with service of process would have been the same wether the case was in limited or unlimited jurisdiction.

http://www.moseleycollins.com/lawyer-attorney-1245027.html

Continue reading "Car Accident Trial Results In Recovery For Sacramento Woman, Part 5 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff’s Requested Statutory Costs Would Have Been The Same Had The Case Been Brought In Limited Jurisdiction

In addition to the Dorman factors, we urge this court to consider other factors as well, such as the limited costs associated with this litigation. Except for procedures specifically designed to lower litigation costs in limited civil cases, the rules of procedure generally applicable to civil actions also apply to limited civil cases. CCP §90. In other words the majority of the procedures in limited jurisdiction are the same as unlimited jurisdiction.

The general right of the prevailing party to recover their costs is established by CCP §1021, which provides that parties to actions or proceedings are entitled to reimbursement of costs as provided in the Code of Civil Procedure. Code of Civil Procedure §1032 provides for the award of costs to prevailing parties, which includes the party with a net monetary recovery. Ms. Hill is the prevailing part and the party with a net monetary recovery. Had the case been brought in limited jurisdiction she would have been entitled to all of he costs and her costs would have been virtually the same as the costs in this case. Accordingly, there is no reason for the court to award Ms. Hill anything other than all of her requested, statutory recoverable costs because she failed to recover more than $25,000.

The discretion provided in CCP § 1033 makes sense if the plaintiff incurs excessive costs that she would not have incurred had she been in limited jurisdiction. For example, if Plaintiff had taken 10 depositions at a cost of $5000 there would be reason to restrict the costs since CCP § 94(b) restricts the number of depositions allowed by the parties to only one per side.
In the current case, however, the costs would have been the same whether the case was in limited or unlimited jurisdiction. With the limited exception of the initial case filing fee, each costs requested by plaintiff would have been the same if this case was brought in limited jurisdiction.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Woman Recovers Damages For Car Accident Injuries, Part 4 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

ARGUMENT

PLAINTIFF IS THE PREVAILING PARTY AND IS ENTITLED TO ALL OF HER STATUTORILY RECOVERABLE COSTS

Plaintiff was Entitled to Bring Her Case In Unlimited Jurisdiction

At the time of filing the subject lawsuit, Ms. Hill had economic loss totaling $27,000. As a result, at the time of filing her lawsuit, the amount in controversy exceeded $25,000. California Code of Civil Procedure § 85(a) defines a limited civil case as one where:

(a) The amount in controversy does not exceed twenty-five thousand dollars ($25,000). As used in this section, amount in controversy means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the lien, that is in controversy in the action, exclusive of attorneys' fees, interest, and costs.

Since Ms. Hill had economic damages which exceeded $25,000, it was proper for her to file her case in unlimited jurisdiction. Filing the case in limited jurisdiction would have required Ms. Hill to concede her reasonable and necessary medical expenses, her lost wages and any non-economic damages.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Verdict In Sacramento Car Accident Case Leads To Fight Over Costs, Part 3 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

During the litigation, defendants made two 998 offer's to compromise. The first for $4500, the second for $7500. Plaintiff made two 998 offers to compromise. The first for $45,000, and the second for $18,000. The second 998 offer was served on the defendants on January 6, 2010.
Prior to making the second 998 on offer to compromise in January of 2010, Plaintiff's incurred the following recoverable costs:

a. Filing fees, $371.90;b. Service fees for John Lee, $60;c. Service fees for Sophia Lee, $83;d. Hill deposition transcript, $507.45;e. Lee deposition transcript, $329;f. Counsel travel to Lee deposition $368.;The total of these costs are $1,719.35

Following the 998 offer to compromise, Ms. Hill incurred the following recoverable costs:

a. Deposition of Dr. White, $308.05
b. Deposition of Dr. Ross, $384.80
c. Service fees for Sgt John Smith, $318.00
d. Witness fees for Linda Lane, $372.20
e. Witness fees for Alberto Miller, $35.00
f. Jury fees, $538.26
g. Court recorder fees, 400.00

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Jury Awards Sacramento Woman Damages In Car Accident Trial, Part 2 of 7" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff Paula Hill’s Opposition to Defendants' Motion to Strike Memorandum of Costs or, in the Alternative, Motion to Tax Costs

INTRODUCTION

Plaintiff Paula Hill was victorious in her jury trial against defendants Sophia Lee and John Lee. Ms. Hill was forced into trial by defendants who refused her section 998 offer which was only $1550 more than the jury trial verdict. Now, having lost at trial and facing a judgment which, when combined with Ms. Hill's recoverable costs, exceed Ms. Hill's 998 offer to compromise, defendants ask this court to strike all of Ms. Hill's costs. To do so would be plainly unjust. Ms. Hill is the prevailing party, she had a good faith belief she would recover more than $25,000 at trial when she filed the lawsuit, and she made a reasonable offer to compromise to avoid the unnecessary costs of litigation. This court should not punish Ms. Hill because the defendants incorrectly valued this case.

PERTINENT FACTS

This case arose from a car accident which occurred in Sacramento on March 1, 2008. As a result of the accident Ms. Hill suffered a strain in her neck and back. Ms. Hill treated with various treatment providers including an acupuncturist and two chiropractic offices. After about a year of consistent treatment, Ms. Hill fully recovered from her injuries.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Woman Wins Jury Award In Car Accident Case, Part 1 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

White 's Lien Amount Must be Reduced by $10,682.58, Which Will Directly and Exclusively Benefit Mr. Black, Not his Counsel.

Mr. Black is legally obligated, based on his "Retainer Agreement (Contingent Fee)" with the XYZ firm to pay that firm 40% of his recovery. In addition, that agreement requires him to pay costs for the prosecution of this action. Those amounts will be deducted from the $100,000 settlement amount.

But White then proposes deducting its full workers' compensation lien of $23,717.22, from what Mr. Black has left from his $100,000 recovery, despite that White did nothing that effectuated that recovery amount. If White is permitted this unreasonable deduction, that will mean money coming from Mr. Black's pocket. In other words, Mr. Black will walk away with considerably less -- only about $31,000. This is completely inequitable, which is why California law requires an allocation to be made.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff proposes that White's lien be reduced by a total of $10,682.58. Plaintiff has calculated the reduction by (1) deducting 40% of the lien amount as White 's equitable share of attorney's fees ($9,486.88); (The 40% calculation is based on the percentage of attorney's fees owed by Mr. Black under his retainer agreement with his counsel.), and (2) deducting 24% of the costs amount as White's equitable share of costs ($1,195.70). (The 24% calculation is based on the fact that the workers' compensation lien amount of $23,717.22 is 24% of the total settlement amount of $100,000.) The sum of $9,486.88 and $1,195.70 equals $10,682.58.

Continue reading "Sacramento Car Accident Victim Must Fight Employer For Part Of His Settlement, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

It was plaintiff's counsel -- the XYZ firm, and particularly Ms. Brown -- whose sole efforts led to the successful settlement of this action for defendants' automobile policy limits.

It was the XYZ firm that did all of the discovery in the case; it was the XYZ firm that collected and subpoenaed all the medical records and other records dealing with liability and damages issues. It was the XYZ firm that interviewed witnesses; and it was the XYZ firm who took depositions of key witnesses and defended the depositions taken by defendants' counsel. It was the XYZ firm that calculated Mr. Black's past and future lost wages as well as medical expenses, further ensuring that all of his medical expenses were accounted for in the damages calculations.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It was the XYZ firm that arranged the mediation, and filed a mediation brief that laid out all the factual detail supporting Mr. Black's claims regarding defendants' liability for the collision and for Mr. Black's damages. It was the XYZ firm that rehabilitated the testimony of Dr. Lee regarding the need for future surgery for Mr. Black, based on medical evidence that firm had collected and which Ms. Brown presented to Dr. Lee during his deposition. It was the XYZ firm that made the section 998 demand before White ever even intervened in the case, and it was that demand that the defendants, following and as a result of all the work the XYZ firm had done, accepted.

Continue reading "Sacramento Orthopedic Surgeon Finds Damage To Car Accident Victim, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

To the same effect are Quinn v. State of California, 15 Cal. 3d 162, 167-69, 124 Cal. Rptr. 1 (1975) (holding that an employee who obtains a judgment in a third-party action that creates a fund from which the compensation insurer's lien is satisfied, in whole or in part, can require the passive beneficiary to bear the fair share of the litigation costs, including attorney's fees); Hartwig v. Zacky Farms, 2 Cal. App. 4th 1550, 1555-56, 3 Cal Rptr. 2d 828 (1992) (holding that merely retaining separate counsel or filing a complaint in intervention or a lien, with little else, does not satisfy the standard of "active participation"; there, the declaration offered by the employer's workers' compensation insurer's attorney was insufficient to support a finding that the lienholder had actively participated in the case); and Kindt v. Otis Elevator Co., 32 Cal. App. 4th 452, 458-60, 38 Cal. Rptr. 2d 121 (1995) (same essential holding).(These cases were decided under section 3856(b), Cal. Lab. Code, referring to judgments rather than settlements. But situations arising under sections 3856 and 3860 must be treated alike. E.g., Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 705-06, 709, 145 Cal. Rptr. 210(1978).)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

These cases all hold that where an employer or his workers' compensation insurer retains separate counsel, files a complaint in intervention and even undertakes a litigation task or two, that participation is nominal and the intervenor becomes a passive beneficiary of the common fund.

Continue reading "Workers' Compensation Claim Becomes Issue In Sacramento Car Accident Case, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

ARGUMENT

White's Lien Must be Reduced Because Plaintiff's Counsel Alone Successfully Prosecuted This Action.

While an employer or its workers' compensation insurer may seek from any settlement between an injured employee and a third-party tort-feasor, reimbursement for compensation he has paid to the employee, that reimbursement is reduced by "the reasonable expenses incurred in effecting such settlement, including costs of suit, if any, together with a reasonable attorney's fee to be paid to the employee's attorney, for his services in securing and effecting settlement for the benefit of both the employer and the employee." See Cal. Lab. Code, § 3860(b) and (c).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This principle applies to the situation where, as here, settlement is effectuated ... solely through the efforts of the employee's attorney. See Cal. Lab. Code, § 3860(c).

In Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 702-03, 709, 145 Cal. Rptr. 210 (1978), the court of appeal ruled that this principle applies even where the employer or his workers' compensation insurer has retained separate counsel as long as the settlement, which represents a common fund from which the lien is paid, is the result of the efforts of the plaintiff's attorney.

Continue reading "Attorney's Fees At Issue In Sacramento Car Accident Lawsuit, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

The XYZ firm also submitted a 16-page mediation brief including all of the facts supporting plaintiff's claims of liability and damages against the defendants. Prior to the mediation, the XYZ firm also made a section 998 demand for the defendants' automobile policy limits of $100,000. The firm offered evidence at the mediation that Mr. Black's economic damages totaled $124,000 and his total damages approached $250,000. At the mediation on April 8, 2010, the defendants' counsel agreed that if the XYZ firm's damage calculations were correct and if Dr. Lee would confirm under oath the information about medical damages and causation the firm had collected and presented at the mediation, defendants would accept plaintiff's statutory offer to settle the case for their auto policy limits of $100,000.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants took Dr. Lee's deposition on May 13, 2010, which Ms. Brown personally attended. While being questioned by the defense attorney, Dr. Lee was unable to give an opinion related to plaintiff's need for future surgery. Ms. Brown then presented Dr. Lee with exhibits she had prepared depicting the MRI findings, asking him a series of questions relating to Mr. Black's injuries, whether the accident was the causative factor for those injuries, as well as his need for future surgery. She was able to rehabilitate Dr. Lee's testimony related to questions asked by the defense attorney at the beginning of Dr. Lee's deposition.

Continue reading "Sacramento Employer Settles For Car Accident Caused By Its Employee, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

The XYZ firm also retained a nurse to prepare a medical chronology; an investigator to obtain a statement from Sandy Silverberg, who had witnessed the accident; an accident reconstruction and bio-mechanical consultant; and a radiologist. The firm prepared Mr. Black for his deposition and attended that deposition; prepared for and attended the deposition of Ms. Silverberg; and prepared for and took the deposition of defendant Melinda Smith.

The XYZ firm prepared two case management conference statements and attended two case management conferences, one in October 2009 and the other in May 2010.

The XYZ firm set up the mediation and retained the mediator.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Prior the mediation and in preparation for it, Ms. Brown met with Dr. Daniel Lee, M.D., the orthopedic surgeon who had operated on Mr. Black's left shoulder, to collect further evidence for the mediation on the issue of causation and damages. The XYZ firm also prepared numerous calculations regarding Mr. Black's past and future wage losses, his billed amount of medical expenses and his future medical expenses for the mediation.

Continue reading "Witnesses Saw Defendant Truck Driver Slam Sacramento Man's Car, Part 3 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

PLAINTIFF'S COUNSEL SOLELY LITIGATED THIS CASE TO A SUCCESSFUL CONCLUSION; WHITE'S INVOLVEMENT WAS NOMINAL

Plaintiff's counsel, the Law Offices of XYZ, and particularly its principal, Marcia Brown, were solely responsible for securing the $100,000 settlement from defendants in this case. White did nothing in that regard, and it was otherwise only nominally involved in the case. It was the XYZ firm that, in May 2009, filed suit against the defendants on behalf of Mr. Black who had suffered serious injuries when defendant Melinda Smith ran a red light and slammed into his truck while he was in the course and scope of his employment. This is a reference to the Declaration of Marcia Brown, dated July 19, 2010, filed in support of this motion.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It was the XYZ firm that thereafter propounded copious discovery (form interrogatories, special interrogatories, document requests and requests for admission) on the defendants, and thereafter reviewed defendants' discovery responses. Plaintiff's firm also responded to defendants' copious discovery requests (general interrogatories, special interrogatories, document requests, and requests for admissions).

The exhibits referred to are attached to Ms. Brown's declaration. Exhibit 1 is a time line showing the progression of the suit and the XYZ's firm work on it.

Continue reading "Sacramento Driver's Truck Slammed By Man Who Ran A Red Light, Part 2 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

Plaintiff Owen Black's Memorandum of Points and Authorities in Support of Motion for Allocation of Attorney's Fees and Costs Related To His Automobile Accident Case (Cal. Lab. Code, § 3860(c))

Motion for an equitable allocation of attorney's fees and costs under section 3860(c) of the California Labor Code.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

INTRODUCTION

Plaintiff's counsel is like the title character in the story, The Little Red Hen. Like the little red hen who, all on her own, found the grain of wheat, planted it, tended it, and eventually mixed it with other ingredients to produce a delicious cake, plaintiff's counsel took every step from start to finish, solely and successfully prosecuting Mr. Black's case against the defendants who had seriously injured him in a car accident.

Plaintiff's counsel filed the action; undertook all the discovery, including preparing for, taking, defending and attending depositions; collected all of the pertinent documents, including medical records, witness statements and accident reports; retained the experts; scheduled and attended the mediation; produced a series of damages calculations and filed a mediation brief laying out the factual basis for plaintiff's claims regarding defendants' liability for the car accident and for his damages. The case settled when defendants accepted plaintiff's section 998 demand of $100,000, based on the evidence solely and exclusively gathered by plaintiff's counsel.

Continue reading "Sacramento Man Seriously Injured In Car Accident, Part 1 of 8" »

The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

LEGAL ARGUMENT

A plaintiff in a personal injury action is entitled to recover from the defendant tortfeasor the "reasonable value" of medical services rendered to the plaintiff, including the amount paid by a collateral source, such as an insurer. Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298. As medical expenses fall into the category of economic damages, they represent actual pecuniary loss caused by the defendants' wrong. (Civil Code Section 1431.2(b)(1); Hanif v Housing Authority (1988) 200 Cal.App.3d 635, 641.) Thus, when the evidence shows a sum certain to have been paid or incurred for past medical care and services, whether by the plaintiff or by an independent source, that sum certain is the most the plaintiff may recover for that care despite the fact that it may have been less than the prevailing market rate. (Hanif v. Housing Authority, supra, 200 Cal.App. at 641.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In this case, the set amount of plaintiff's reasonable medical services is that which was actually paid by Aetna Blue Cross in facilitating CMSP under which plaintiff was covered. These actual payment figures are attached as Exhibit A as Amount Paid. By virtue of this resolved amount, and pursuant to Hanif and Nishihama, these amounts paid reflect the objectively verifiable monetary losses for the plaintiff's treatment. (Civil Code § 1431.2(b)(1)

Continue reading "Amount Of Medical Insurance Coverage At Issue In Sacramento Car Accident Claim, Part 3 of 3" »

The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

FACTUAL BACKGROUND

This case involves an automobile accident that occurred on August 9, 2008, on northbound Watt Avenue south of Marconi in the city of Sacramento, county of Sacramento, state of California. Plaintiff Randall Brown claims that defendant Brenda White was negligent in the operation of her motor vehicle that day. Plaintiff claims physical injury as a result. Defendant disputes liability as well as the nature and extent of plaintiff's overall claims.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff Brown did not seek medical attention on the date of the accident, and continued to Lake Tahoe on the date of the accident. Two days later he was seen at Memorial Hospital upon his return trip home from Lake Tahoe and was diagnosed with a closed head injury, cervical sprain, rotator cuff sprain, and a lumbar sprain. Plaintiff was discharged with instructions to follow up with his primary care provider.

After the accident, plaintiff stopped working at Blockbuster, and lost his health insurance benefits. He then sought and received benefits through CMSP, which provides health insurance for low-income indigent adults in thirty four rural counties in California. This program is facilitated by Aetna Blue Cross. Brown continued to treat with a number of different facilities, and the records attached as Exhibit A show the various medical providers he has sought.

Continue reading "Sacramento Man Involved In Two-Car Collision, Part 2 of 3" »

The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

DEFENDANTS’ MOTION IN LIMINE TO SET REASONABLE VALUE OF MEDICAL SERVICES

SUBJECT EVIDENCE: REASONABLE VALUE OF MEDICAL SERVICES AS THAT AMOUNT REDUCED OR ADJUSTED BY MEDICAL PROVIDERS PRIOR TO PAYMENT BY NATIONAL INSURANCE CO.

Basis For Set Value: Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641; Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 306-309; Civil Code Section 1431.2(b)(1).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

INTRODUCTION

Under California Law, the most a personal injury plaintiff can recover for medical services is the amount that has been paid or incurred for those services, even if that amount is less than the market rate. Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641; Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 306-309. Defendants Brenda White and Donna White hereby move this Court for an order setting the reasonable value of medical services for plaintiff's medical providers to that which National Insur. Co. paid the providers on behalf of plaintiff Randall Brown due to his coverage through County Medical Services Program (CMSP), which coverage is facilitated by National Insur. Co. CMSP provides low-income indigent adults with health insurance in thirty-four rural counties in California.

Continue reading "Sacramento Man's Medical Expenses Challenged After Car Accident, Part 1 of 3" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

CONCLUSION

It is respectfully submitted that the plaintiff in this matter did carry her burden of proof in establishing that she suffered both economic and non-economic harm as a direct result of the automobile accident in question.

The testimony of the plaintiff was that she sought medical care and treatment immediately after this accident and was admitted to Kaiser Hospital's emergency room where she was examined, found to have suffered a physical injury, and was administered powerful narcotics as a result of her pain and suffering. Additionally, she testified that as a result of this accident she became nauseated and was vomiting which further required medical care and treatment for a condition which was not present prior to this accident occurring. The plaintiff's testimony as to her loss of income as a result of the off work notice given by physicians at Kaiser also demonstrated economic damage.

The court, by allowing counsel for the defendant to use exhibits over and over and over again after objections were made to their introduction constituted irregularities in the proceeding and attorney misconduct. To have allowed defendant's counsel over objection to question witnesses concerning medical records that the witness did not author, and which the witness did not rely on in reaching opinions and conclusions for the purpose of attempting to impeach the plaintiff's claim of certain injuries is sufficient to grant this motion for new trial. What counsel for the defendant attempted to do was to show by an absence of record, without establishing a foundation that the record even inquired or dealt with the subject matter of the personal injuries prejudiced this plaintiff and apparently influenced the jury to disregard the law with regard to causation.

Continue reading "Compensation For Medical Treatment At Issue In Sacramento Automobile Collision Case, Part 9 of 9" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Based on the fact that there was no evidence to show that the plaintiff was under any medical care and treatment for either her back or her neck prior to this automobile accident, and given the fact that the plaintiff did seek immediate medical care and treatment which was rendered at Kaiser, the evidence must be given weight to support a finding that the plaintiff was harmed as a result of the defendant's imminent liability.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The question is not whether or not the plaintiff recovered from her injuries over time, but instead is a question of whether or not she was injured or harmed as a result of this negligent conduct and as such incurred both economic and non-economic losses. The testimony in this case was not refuted by any evidence presented by the defendant that the plaintiff following this accident was admitted to the emergency room at Kaiser, received medical care and treatment, was administered powerful narcotics, that the plaintiff followed up her injuries with her primary care physician within two (2) days of the date of this accident, that the plaintiff was off work for a period of time as a result of her injuries, and that the plaintiff suffered pain and suffering as a result of this accident.

Continue reading "Amount Awarded For Car Accident Injuries At Issue In Sacramento Trial, Part 8 of 9" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

THE VERDICT WAS AGAINST LAW

The ground for new trial that the verdict is against law, is separate and distinct from other grounds listed in Code of Civil Procedure section 657, and does not involve the weighing of the evidence. Rather, the jury's verdict is against law if it is unsupported by the evidence. (See Sanchez-Corea v. Bank of America. (1985) 38 Cal.3d 892.)

In the case of Kruse v. Bank of America. (1988) 202 Cal.App.3d 38, at 51 and 52, the court stated that the test for substantial evidence is:

Substantial evidence, however, is not synonymous with any evidence. To constitute sufficient substantiality to support the verdict, the evidence must be "reasonable in nature, credible and of solid value." It must actually be "substantial" proof of the essentials which the law requires in a particular case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Here, there is no reasonable or credible evidence to deny that this plaintiff was in fact injured as a result of this accident and that such injuries required medical care and treatment all to the economic and non-economic damage of the plaintiff.

Continue reading "New Trial Demanded By Sacramento Woman Injured In Auto Accident, Part 7 of 9" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

THERE WAS IRREGULARITY IN THE PROCEEDINGS RELATING TO THE COURT'S ALLOWING EVIDENCE

Over the objection of counsel for the plaintiff, defendant's counsel engaged in what can be described as nothing less than misconduct.

In the case of Smith v. Covell. (1980) 100 Cal.App.3d 947 at 959 the court says that questions which calls for patent hearsay evidence cannot be brought in the back door on cross-examination of a party or for any other reason. That court rejected at page 960 claims by counsel that such questions were for the purpose of impeachment holding that such claims do not barr the evidence from being presented based on the hearsay rule. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In this case, over objection of counsel, defendant's attorney questioned Dr. Lee and Dr. Gold about medical records which were not admissible under Evidence Code section 1271 or 1272. Objections were made at the time counsel for the defendant attempted to question the doctors concerning medical records which they did not prepare and which did not contain any information concerning the claims of the plaintiff. All of this was for the purpose of trying to demonstrate that the plaintiff did not complain of neck injuries over an extended period of time.

Such records include Exhibit 181 for identification which was written on March 17, 2005, by unknown persons. Counsel for the defendant asked questions concerning this document over objections that it lacked foundation, and was nothing more than hearsay to elicit responses that this document does not show any claim for a neck injury.

Continue reading "Plaintiff Claims Improper Attorney Conduct In Sacramento Car Accident Trial, Part 6 of 9" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The testimony of plaintiff, Alice Hall, was that not only did this accident cause her injury which led to her admission to the emergency room on the night of this accident, but she also suffered economic damages in that she was off work for three (3) days following this accident. According to her testimony she was not able to work on March 6th, March 7th and March 9th. Based on her income level of slightly more than Fifty-Six Dollars ($56.00) per hour her economic damage immediately following this accident was One Thousand Two Hundred Thirty-Three Dollars ($1,233.00). No evidence was submitted by the defendant to refute that economic loss based on her inability to work for a period of time following this accident.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

While the defendant in this action provided considerable evidence concerning Ms. Hall's neck injury, no evidence was ever submitted which refuted her low back injury. Thus, if this jury had followed the instructions given by this court under CACI 3900, 3901, 3903, 3903a, 3903c, and 3903d the jury would have had to have found that the negligence of Charles White, which was admitted, was a substantial factor in causing harm, as defined by the court to this jury. Once Question No. 1 was answered in the affirmative, then the jury had an obligation to determine the nature and extent of the economic and non-economic damages to be awarded to the plaintiff. However, in this case, because the jury did not follow the law as given to it by the court those questions were not answered.

Continue reading "Sacramento Jury Trial Results In Insufficient Damages Award For Car Accident, Part 5 of 9" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

THE EVIDENCE IS CLEARLY INSUFFICIENT TO JUSTIFY THE VERDICT

The evidence in this case is overwhelming that the plaintiff, Alice Hall, did in fact suffer an injury as a result of this accident.

In that regard, attached hereto and incorporated herein by this reference and marked as Exhibit A is a copy of the traffic collision report which was reviewed and referred to by Mr. Berg and Dr. Wagner. On page 3 of 5 the report indicates that there is a complaint of pain to the low back of Ms. Hall as a result of this accident.

Additionally, marked as Exhibit 179 for identification in the trial was the emergency room record concerning Ms. Hall's admission to Kaiser. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff, Alice Hall, testified that following this accident she was transported by her husband to the urgent care facility of Kaiser. Upon admission to the urgent care it was determined that she should be transferred immediately, according to her testimony, to the emergency room.

Exhibit 179 for identification, which is marked as Exhibit B and attached hereto clearly indicates that at the time of her admission on the date of this accident, March 5, 2005, Ms. Hall did complain of low back pain. In fact, Exhibit 179 shows that not only radiology was performed on her low back, but she was administered morphine as a result of the pain which she incurred.

Continue reading "Jury Awards Sacramento Driver Damages After Auto Accident, Part 4 of 9" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

MORE RELIEF AVAILABLE

In weighing and evaluating the evidence, the court is a trier of fact and not bound by factual resolutions made by the jury. The court may grant a new trial even though there is sufficient evidence to sustain the jury's verdict on appeal, so long as the court determines that the weight of the evidence is against the verdict. (Candido v. Huitt. (1984) 151 Cal.App.3d 918, 923.)

The court has the power to consider the credibility of witnesses to draw reasonable inferences contrary to those drawn by the jury. (Valdez v. J.D. Diffenbaugh Co., (1975) 51 Cal.App.3d 491, 512.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is not only the right, but the duty of the trial judge to grant a new trial when he or she believes the weight of the evidence to be contrary to the findings of the jury. (Tice v. Kaiser Co., (1951) 102 Cal.App.2d 44, 46.)

A new trial should be granted when the verdict is against law. These grounds apply one when the evidence is without substantial conflict in any material point and insufficient as a matter of law to support the verdict. (McCowan v. Spencer (1970) 8 Cal.App.3d 216, 229.)

A verdict is against law, if the evidence is legally insufficient to support the verdict. (McCowan. supra.)

Continue reading "Sacramento Woman Sues For Damages After Two-Car Collision, Part 3 of 9" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES

COURT’S AUTHORITY TO GRANT A NEW TRIAL

A new trial is an examination of the issues of fact in the same court after trial and decision by the jury, court or referee. (Code of Civil Procedure section 656.)

A motion for new trial is proper only to secure examination of the issues of fact. (Rinaldo v. Superior Court. (1936) 15 Cal.2d 585.)

The test of propriety from the order granting a new trial is not whether there is sufficient evidence to support the jury's verdict, but whether a contrary verdict would have been supported by substantial evidence. (Biggins v. Hanson. (1967) 252 Cal.App.2d 16.)

A motion for new trial may be entertained where issues of law or issues of law and fact, are determined as well as where issues of fact are decided. (Carney v. Simmonds. (1957) 49 Cal.2d 84.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The trial judge is accorded wide discretion and ruling on motions for new trial and exercise of this discretion is given great difference on appeal. (Sherman v. Kinetic Concepts. Inc., (1998) 67 Cal.App.4th 1152.)

RELIEF AVAILABLE

The verdict may be vacated and other decisions may be modified or vacated, in whole or in part and a new and further trial granted if all or part of the issues on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: (1) Irregularities in the proceeding of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) Inadequate damages;

Continue reading "Muilti-Car Sacramento Accident Leaves Driver Injured, Part 2 of 9" »

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff Alice Hall will move the court to grant her motion for new trial on the issue of damages on the grounds set forth within her notice of intention to move for new trial, filed separately.

INTRODUCTION

The jury in this matter returned a verdict on special questions submitted to them on November 7, 2008.

Prior to the matter going to the jury the defendant Charles White by and through his attorney of record, Jeffrey Smith, had admitted liability. Therefore, the only special questions presented to the jury dealt with the issues of damages. In this verdict the jury found that defendant Charles White's negligence was not a substantial factor in causing harm to plaintiff Alice Hall. None of the other special questions were responded to.

Plaintiff has filed a notice of motion for new trial and judgment notwithstanding the verdict within the statutory period after the verdict was entered. No written notice of the entry of the judgment has ever been given to this party. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the notice for new trial, plaintiff alleged the following grounds:

1. Irregularity in proceedings of the court and jury;
2. Misconduct of the jury;
3. Inadequate damages;
4. Insufficiency of the evidence to justify the verdict and the verdict is against law;
5. Error of law occurring at trial.

Continue reading "Sacramento Woman Suffers Catastrophic Injuries In Car Accident, Part 1 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Further, in Sesler v. Ghumman, 219 Cal. App.3d 218, 224 (1990), the court found that a driver making a left turn across multiple lanes of traffic must yield to oncoming traffic in each lane of travel. The court in Sesler stated that while a motorist may waive his or her own right-of-way, neither the law nor common sense dictates that the waiver applies to any other motorist. Id. In Sesler, the plaintiff was traveling south when he stopped his motorcycle in a left turn pocket and waited for traffic to clear in the three oncoming lanes; the cars in oncoming lanes 1 and 2 stopped and motioned for the plaintiff to proceed with his left hand turn in front of them. Id. Seeing no hazard in lane 3 (the lane closest to the curb), the plaintiff commenced his turn; but the defendant, who had been traveling north in lane 1, had moved to lane 3 to avoid the cars he saw stopped in front of him and he collided with the plaintiff in the intersection. Id.

Therefore, it is contrary to the law for defendant White to argue in this matter that she had no duty to anticipate that other drivers would not yield the right of way. See Id. at 222. A party has a right to jury instmctions on his or her theory of the case, if they are reasonable and supported by the pleadings and the evidence, or any inference which may properly be drawn from the evidence. See Sesler, 219 Cal. App.3d at 223. In the present action, defendant's theory was not supported by any evidence. As a result, it was improper for defendant to argue that Plaintiff caused or contributed to this accident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DEFENDANT'S IMPROPER ARGUMENTS SOUGHT TO IMPROPERLY MOTIVATE THE JURY THROUGH PASSION AND PREJUDICE

Plaintiff Hall asserted to the Court that there was a substantial probability that, if defendant was permitted to make improper arguments concerning claims of Plaintiff's contribution to the accident, it would inflame the jury.

Continue reading "Damages At Issue In Sacramento Auto Accident Case, Part 5 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff's claims against defendant are based upon defendant's negligence relating to defendant's clear violation of California Vehicle Code §21801 (a) (unsafe left turn). In Bewley, the court expressly stated that a driver is under a duty, both by statute and common law, to operate his vehicle without negligence so as to abstain from injuring any other person or property. Id. (Citing Civil Code §1708).

CACI jury instruction 700 expressly instructs a jury that:

A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant clearly violated Vehicle Code §21801 (a) by making an unsafe left turn in front of Plaintiff. See Vehicle Code §21801(a); Hickson v. Beitel, 103 Cal.App.2d 391, 393-394 (1951). Section 21801 (a) expressly states that:

"[t]he driver of a vehicle intending to turn to the left or to complete a U-turn upon a highway, or to turn left into public or private property, or an alley, shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn or U-turn can be made with reasonable safety."

Continue reading "New Trial Sought By Plaintiff In Car Accident Case, Part 4 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

In the present case, it is clear that this Court is entitled to, and actual obligated to, make a separate determination as to whether or not the verdict, which included a finding of seventy-five percent fault on the part of Plaintiff, was appropriate. Further, Plaintiff submitted evidence of medical bills of in excess of $18,970.54. Evidence was also presented concerning the need for future medical care at a cost of in excess of $23,400.00. Therefore, Plaintiff submits that the evidence establishes that the verdict is improper, and that there was inadequate evidence presented by defendant at trial to support such a verdict. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DEFENDANT SHOULD NOT HAVE BEEN PERMITTED TO ARGUE COMPARATIVE NEGLIGENCE OF PLAINTIFF AT TRIAL

In advance of trial, Plaintiff filed a Motion in Limine seeking to preclude defendant from arguing at trial that Plaintiff caused or contributed to the accident. Defendant's contention that Plaintiff has any fault in this accident is without merit. At the time of the accident Plaintiff was lawfully proceeding eastbound on West Ave. with the flow of traffic. He had the right of way at all times, and he had the legal right to expect that defendant would not make an illegal left turn directly in front of Plaintiff's vehicle. Based upon the exact details of the accident, defendant had no evidence to support a bare claim that Plaintiff somehow contributed to the accident. And defendant presented no such evidence at trial. (See Part 4 of 5.)

Continue reading "Sacramento Man Wins Car Accident Case, Part 3 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

ARGUMENT

THE TRIAL COURT IS ENTITLED TO AND MUST INDEPENDENTLY REVIEW THE EVIDENCE, SO AS TO GRANT A NEW TRIAL WHEN A JURY VERDICT IS AGAINST THE SUBSTANTIAL WEIGHT OF THE EVIDENCE

In a jury trial, each party has two hearings, one before the jury and the other before the court as "a 13th juror." Nordent v. Hartman, 111 Cal.App.2d 791, 798 (1952). It is not only the right, but also the duty of the trial judge to grant a new trial when he or she believes the weight of the evidence to be contrary to the finding of the jury. Rice v. Kaiser Co.,102 Cal.App.2d 44, 45 (1951)

As part of its review of the verdict, a trial court is not bound by the conclusions of the jury:
In weighing and evaluating the evidence, the court is a trier of fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there may be sufficient evidence to sustain the jury's verdict on appeal, so long as the court determines the weight of the evidence against the verdict. Candido v. Huitt, 151 Cal.App.3d 918 (1984).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The authority of a trial court to grant a new trial is established and circumscribed by statute, which provides seven legal grounds for such a motion. See Code of Civil Procedure §657(1)-(7). These grounds are: (1) Irregularity in the proceedings; (2) Misconduct of the jury; (3) Accident or surprise; (4) Newly discovered evidence; (5) Excessive or inadequate damages; (6) Insufficiency of the evidence; and (7) Error in law. See Id.

Continue reading "Two-Car Collision In Sacramento Leaves Man In Serious Condition, Part 2 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff Peter Hall’s Notice of Motion and Motion for New Trial; Memorandum of Points and Authorities in Support Thereof

On June XX, 2010 at 8:30 a.m., or as soon thereafter as the matter may be heard in Sacramento Superior Court, Plaintiff Peter Hall will move this Court for an order for a new trial of this matter.

Plaintiff's Motion is based on the attached Memorandum of Points and Authorities, the evidence and case law, the pleadings, documents, records, and files in this action, and such oral and documentary evidence and argument which may be presented at the hearing on this motion.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

On or about February XX, 2008, Plaintiff Peter Hall, age 25, was driving his 2001 Range Rover eastbound on West Blvd. in Sacramento, California. Suddenly, defendant Genvieve White made an unsafe left turn in her 2004 BMW X5 SUV from westbound West towards University Dr., crossing three lanes of traffic, directly in front of Plaintiff. Plaintiff was unable to avoid defendant's vehicle, resulting in a severe collision between the vehicles.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On or about March XX, 2010, trial of this matter commenced in Department "X" of the Sacramento Superior Court. During the trial plaintiff presented substantial evidence and expert opinions supporting his position that he had sustained general and special damages totaling in excess of $129,000.00.

Continue reading "Sacramento Man In Catastrophic Automobile Accident, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

This Court May Exclude Evidence That Will Waste Time And Confuse Jurors

Evidence Code §352 states that the court in its discretion may exclude evidence if its probative value is substantially out weighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Emphasis added.) See People v. Sanders (1995) 11 Cal.4th 475, 514; Cubic Corp. v. Marty (1986) 185 Cal.App.3d 438, 455.

Any testimony regarding the automobile collision involving plaintiff that occurred in 1998 will likely involve an undue consumption of time. There is no record that plaintiff was in an accident in 1998 and no record of any injury sustained as a result of the alleged accident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The only record of a 1998 accident involving plaintiff is his statement to William Hill, P.A., one of the many individuals who have treated plaintiff since the crash with defendant. Thus, plaintiff anticipates that defendant will attempt to introduce the testimony of William Hill that plaintiff told Hill plaintiff was in a 1998 car accident. This testimony will add nothing new to the evidence presented because it has no bearing on liability, causation, or damages. Allowing testimony regarding this event will prolong the trial without good reason or justification.

Further, any mention of this collateral matter will create a substantial danger of confusing the issues and misleading the jury. Should this evidence be admitted, the jury will likely speculate that plaintiff's injuries were caused by a 10-year-old accident.

Continue reading "Damages Sought By Sacramento Driver After Car Accident, Part 3 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Evidence Of The 1998 Automobile Collision Is Irrelevant And Therefore Must Be Excluded

Evidence Code §350 states that no evidence is admissible except relevant evidence. "Relevant" evidence is defined by Evidence Code §210 as "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." See People v. Kelly (1992) 1 Cal.4th 495, 523 (only relevant evidence is admissible).

Any evidence of the 1998 automobile collision involving plaintiff has no potential to prove or disprove a disputed fact that is of consequence to the determination of this action. Plaintiff was not mentioned in the Traffic Collision Report and he received no medical treatment as a result of the collision. (Morris Depo., 226: 20-24.) There is no evidence that plaintiff suffered from any injury related to a 1998 accident. Further, there is no evidence that plaintiff suffered from any pre-existing medical condition from 1998 to 2008. (Morris Depo., 233: 9-15.) Thus, any inquiry regarding the 1998 collision is not relevant. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Other evidence that may be excluded under the authority of Evidence Code §350 is that which is speculative. See William Dal Porto & Sons, Inc. v. Agricultural Relations Board (1987) 191 Cal.App.3d 1195, 11-12. The court must exclude evidence if the trier of fact must draw speculative or conjectural inferences from it. See People v. Parrison (1982) 137 Cal.App.3d 529.

Continue reading "Sacramento Auto Accident Victim Fights To Exclude Evidence Of Prior Collision, Part 2 of 3" »

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff's Motion in Limine to Exclude References to A 1998 Automobile Accident

Plaintiff, Owen Black, by and through his attorney of record to request an order prohibiting any mention of an automobile crash involving plaintiff that occurred in 1998 in the State of Washington. This motion is based on the grounds that the evidence is irrelevant, immaterial, confusing, prejudicial, and is expressly prohibited by the laws of this state.

Preliminary Statement

This case involves a civil action arising from an automobile accident that occurred on July 10, 2008, when the defendant crashed her vehicle into the rear of the Toyota Land Cruiser plaintiff was driving. As a result of the crash, plaintiff sustained severe injuries. The defense will attempt to introduce evidence that plaintiff was involved in an automobile accident in 1998. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In 1998, plaintiff was a passenger sitting in the back seat of an automobile when it was hit in the side by another motorist. Plaintiff was not injured, did not receive any medical treatment as a result of the alleged incident, and worked in the construction industry for more than a decade following the alleged incident. Moreover, there is no record or report that plaintiff was in any accident in 1998. There are no medical records indicating he was in an accident in 1998. (See Part 2 of 3.)

Continue reading "Sacramento Man Injured In Serious Car Accident, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff here can only allege that defendant ran a red light and entered an intersection by driving into a lane that was not intended for through traffic. (Incidentally, these are factually disputed.) If true, such acts were negligent. But even grossly negligent or reckless acts do not suffice for punitive damages. Dawes, supra. Tacking on the words "willful and conscious disregard" does not create an action for punitive damages. Broussear v. Jarrett (1977) 73 Cal App 3d 864, 872.

Indeed, if plaintiff's theory on punitive damages were allowed, then virtually every traffic collision case would result in punitive damages: in virtually every such case will be found a defendant who ran a red light, or entered a wrong lane, or drove excessively fast, or otherwise exhibited behavior that was less than admirable - but hardly the stuff of punitive damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At the most, plaintiff's allegations of defendant's running a red light and entering an undesignated lane might be grossly negligent. But, as Dawes teaches, that is not enough. Indeed, Dawes was decided before the legislature amended the statute to add despicable conduct to the requirements for stating a cause of action for punitive damages. None of these allegations approach the Dawes threshold, let alone that of the revised statute.

Continue reading "Injured Sacramento Driver Seeks Punitive Damages For Car Accident, Part 3 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

DISCUSSION

A motion to strike is of course appropriate to strike any "improper matter in a pleading, or any part of a pleading" not drawn or filed in conformity with the laws of this state. CCP § 436.

One might begin the discussion of punitive damages with the universally recognized principle that [t]he law does not favor punitive damages and they should be granted with the greatest caution. Dyna-Med Inc v. Fair Employment and Housing Commission (1987) 43 Cal 3d 1379, 1392. This of course makes excellent sense, as the defendant will be subject to personal liability virtually equal to one found guilty of criminal conduct.

The burden of proof a plaintiff must meet is higher than that for any other civil issue: the plaintiff must prove by "clear and convincing evidence" that the defendant is guilty of oppression, fraud, or malice ... Civil Code § 3294 (a). An one appellate court noted, "Clear and convincing evidence" requires a finding of high probability ... requiring that the evidence be "so clear as to leave no substantial doubt." In re Angela P (1981) 28 Cal 3d 908, 919. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The elements plaintiff must prove are no less stringent. The plaintiff must prove "oppression, fraud or malice." CC § 3294 (a). Thus, "the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages." Dawes v. Superior Court (1980) 111 Cal App 3d 82, 90.

Continue reading "Reckless Sacramento Driver Catastrophically Injures Sacramento Man, Part 2 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Defendant's Motion to Strike Punitive Damages: Points & Authorities
Procedural Matters

This motion is filed pursuant to the Court's tentative ruling, which became the final ruling, and in which the Court granted plaintiffs motion to amend for punitive damages, but also granted leave for the defense to file and serve a motion to strike. Thus, the Court apparently granted to motion to file based on the jurisprudence governing filing amended complaints, and is permitting this forum of the motion to strike to address whether the punitive damages allegations should be allowed to stand.

FACTS

This case is based upon a two vehicle accident which occurred on November 18, 2008. Plaintiff Eli White was on a motorcycle and collided with defendant Lee’s vehicle. There is a dispute as to who had the green light. There are no allegations of driving while under the influence; plaintiff simply lists various aspects of an ordinary vehicle accident in the First Amended Complaint and then appends conclusory language that the actions entitle plaintiff to "exemplary and punitive damages." For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The only facts upon which counsel attempts to bring this ordinary auto negligence case under punitive damages are: (1) defendant was "running a red light," defendant "traveled in an undesignated lane at a high rate of speed," and (3) "proceeded into a busy intersection." Id.

Continue reading "Sacramento Driver Runs Red Light Causing Serious Car Accident, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Hill's Request Should Be In the Form of a Demurrer. Motion to Strike, or Judgment on the Pleadings. Not a Motion for Summary Adjudication.

Defendant also argues that plaintiffs' request for punitive damages should be stricken because plaintiffs' complaint only contained legal conclusions and generalizations. Defendant's characterization is inaccurate as the portion of the complaint seeking punitive damages is full of specific factual allegations. Furthermore, if the basis for this motion is the legal sufficiency of the plaintiffs' complaint, then defendant should have challenged it instead with a demurrer, motion to strike, or motion for judgment on the pleadings.

Defendant cites Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1 for the proposition that plaintiffs' request for punitive damages should be stricken because the complaint contained only legal conclusions. In Cohen, which was an appeal on a motion for judgment on the pleadings (rather than a motion for summary adjudication), the complaint sought punitive damages by stating abstract legal conclusions such as malice, wanton, and willful. (Id. at 8.) No specific factual allegations were made to support the punitive damages claim. (Id.) Plaintiffs' complaint in the subject action is replete with specific facts.

Plaintiffs alleged that in an act of road rage, Hill swerved his car toward Sean Black's SUV; that Hill's car traveled erratically; and that it slammed into Sean's SUV, causing it to roll over three times. The Lynchs' complaint does not contain generalizations and legal conclusions. It is supported with numerous and specific factual allegations. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A motion for summary adjudication is not the proper procedure for defendant to attack plaintiffs' complaint.

Continue reading "Sacramento Road Rage Case Leads To Serious Car Accident, Part 6 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiffs Do Not Need to Show that Defendant Intended to Injure Sean Black In Order to Recover Punitive Damages

By describing the subject crash as "merely" accidental, Hill argues that Sean cannot recover punitive damages because he does not have evidence that Hill intended to injure Sean. First, the crash was not just a simple accident. Hill caused the crash by acting recklessly in a number of ways just before the crash. Defendant's conduct made the crash all but inevitable. But more importantly, there is no bar to recovering punitive damages under Civil Code § 3294 if plaintiffs cannot prove that defendant intended to harm plaintiff.

A conscious disregard of the rights or safety of others means a conscious disregard of the probability that the actor's conduct will result in injury to others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895.) Here, Hill's conduct immediately before the crash significantly increased the chances of injury to others, especially to Sean. In order to obtain punitive damages, plaintiff need not prove that defendant intended to cause injury to the plaintiff. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 808.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Rather, plaintiff needs to only show that defendant acted in conscious disregard for other people's safety. (West v. Johnson & Johnson Prods., Inc. (1985) 174 Cal.App.3d 831, 867 (inadequate product testing); Penner v. Falk (1984) 153 Cal.App.3d 858, 867 (landlord's knowledge for years that conditions on premises created danger of criminal attacks); Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279 (allowing grease to build up near gas station pumps).)

Continue reading "Sacramento Highway Car Accident Due To Reckless Driver, Part 5 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

LEGAL ARGUMENT

A Triable Issue of Material Fact Exists as to Whether Defendant Hill Acted with Malice, Oppression, and Willful and Conscious Disregard of the Safety of Sean Black.

Summary adjudication to dispose of a plaintiff's prayer for punitive damages is granted only if the moving party is able to prove that there is no merit to the punitive damages claim. (Code of Civil Procedure §437c(f)(1).) A plaintiff may recover punitive damages in a tort claim if there is clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civil Code § 3294(a).) Malice is defined as despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ.C. § 3294(c)(1).) Oppression is similarly defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (Civ.C. § 3294(c)(2).)

Defendant Hill claims that plaintiffs cannot prove that Hill's conduct before the violent collision and rollover merits the imposition of punitive damages. Defendant's motion ignores overwhelming evidence of his own despicable conduct, which directly led to the crash and Sean's serious injuries. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the moments before the subject collision, Hill intentionally acted in a number of ways that exponentially raised the risk of a high speed crash and significant harm to Sean Hill. They include:
*repeatedly cutting off Sean;
*driving erratically;
*shaking his fist while leaning across his front passenger seat;
*doing all of the above while holding a cigarette;
*doing all of the above while traveling at 65 to 70 miles per hour; and
*swerving towards Sean's vehicle.

Continue reading "Malicious Behavior By Sacramento Driver Results In Major Injury Accident, Part 4 of 6" »

The following blog entry is written to illustrate a common motion filed during the early stages of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

STANDARD OF REVIEW

Summary judgment and summary adjudication are to be granted only with great caution. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266.) In reviewing a motion for summary judgment or summary adjudication, the court's sole function is to determine from the submitted evidence whether there is a triable issue as to any material fact. (C.C.P. §437c(c); Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) The court should strictly construe the moving party's evidence and liberally construe the evidence presented by the motion's opponent. (Zavala at 926; Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.)

Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Id., citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) If there is a triable issue, it is error for the trial court to grant summary judgment. (Doiichin v. Guerroero (1995) Cal.App.4th 1832, 1837.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A defendant has met its burden of showing that a cause of action or claim for damages has no merit only if he has shown that one or more elements of the cause of action or claim for damages cannot be established. (C.C.P. § 437c(p)(2).)

Continue reading "Angry Sacramento Freeway Motorist Confrontation Leads To Auto Collision, Part 3 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

FACTUAL SUMMARY

William Hill has difficulty controlling his anger. (See, Plaintiffs' Separate Statement of Undisputed Material Facts) Many of his friends have told Sean that he has anger control issues. About a year before the subject crash, Hill was involved in a fistfight at a bar and gave the other combatant a bloody nose.

On September 21, 2008, William Hill and Sean Black were both traveling eastbound on Interstate 80. Sean saw Hill's car in the rear view mirror, accelerating towards him and changing lanes. Hill, without using his turn signal or slowing down, cut Sean off, squeezing his car between a truck and Sean's SUV. Sean immediately braked hard to give Hill more room. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Hill and Sean continued traveling eastbound on Interstate 80. At one point, when they were driving next to each other, Hill flipped Sean off. Moreover, Hill repeatedly cut off Sean.

Just before the collision, Hill leaned across his front passenger seat and shook his fist at Sean. At the same time, Hill was holding a cigarette and driving at 65 to 70 miles-per-hour. He made a sudden, jerking movement and his car swerved towards Sean's SUV.

Continue reading "Sacramento Liquor Company Liable For Employee's Car Accident, Part 2 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiffs' Memorandum of Points and Authorities in Opposition to Motion for Summary Adjudication

INTRODUCTION

Sean Black is suing defendants William Hill ("Hill") and Liquor Products, Inc. ("L-P") for the serious neck and back injuries he suffered when the car driven by William Hill struck Sean Black's SUV at highway speeds, causing Sean's SUV to violently roll over three times, crushing its roof in the process. Sean's wife Carrie Black has a loss of consortium claim. William Hill was employed by L-P and was within the course and scope of employment when the collision took place.

This motion should be denied on both substantive and procedural grounds. Substantively, defendant Hill brings this motion on the grounds that there is no evidence to support plaintiffs' request for punitive damages. The motion should be denied because ample evidence exists to show that defendant Hill acted with malice, oppression, and a willful and conscious disregard of the safety of Sean Black. Just before the subject collision, defendant Hill consciously and recklessly cut off Sean repeatedly, drove erratically, swerved towards Sean, and shook his fist at Sean, all while holding a cigarette and traveling at 65 to 70 miles-per-hour.

Defendant Hill's motion must also be denied on substantive grounds because he incorrectly argues that punitive damages are allowable only if the defendant intended to injure the plaintiff. Neither statutory nor case law supports this baseless requirement. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento SUV Driver Injured In Car Accident, Part 1 of 6" »

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

U.S. Supreme Court Standard

Wainright v Witt, (1985) 496 US 412 held the standard for exercising a challenge for cause is whether the jury may be "substantially impaired" from following the law. A question of whether the juror can "follow the law" is insufficient to meet this standard. Most jurors try to be fair and most will say that they can follow the law. And, indeed jurors usually use their best efforts to comply with their duties. But, there may be circumstances of a specific case or a specific rule of law in which the juror may try to follow the law, but is impaired from doing so, by virtue of their knowledge, training, experience, or other factors. The parties in personal injury cases are entitled to know about jurors who have no impediments to applying the law as instructed by the court, not jurors who may try and fail to comply.

Trial Counsel Must be Given Latitude to Discover Bias

In considering the challenges for cause, California has detailed provisions for challenges. There are three grounds for a challenge for cause: 1) general disqualification, which disqualifies the juror from serving in the action on trial; 2) implied bias, as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror; or 3) actual bias, when a state of mind exists on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party. (CCP §225, (b)(1)(A), (b)(1)(B), and (b)(1)(c). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A challenge for implied bias may be taken for one or more of the following causes:

(e) Having an unqualified opinion or belief as to the merits of the action founded upon knowledge of its material facts or of some of them.

(f) The existence of a state of mind in the juror evincing enmity against, or bias towards, either party. (CCP §229.)

Continue reading "Jurors' Background And Biases Fair Game In Sacramento Car Accident Case, Part 3 of 3" »

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Scope of Requested Voir Dire

The scope of questioning has to accomplish the goal of a "fair and impartial jury" in this personal injury matter, which may involve numerous issues. Although CCP §222.5 permits the court to impose some limits, the statute specifically requires that the court take into account: any unique or complex elements, legal or factual, in the case and the individual responses or conduct of jurors which may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case.

(California Code of Civil Procedure) section 222.5 grants counsel in a civil trial the right to conduct "oral examination of prospective jurors to enable them to exercise both peremptory and for cause" challenges. The scope of such examination may be restricted by the trial court within reasonable limits that allow counsel liberal and probing examination to discover bias and prejudice within the circumstances of each case. Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 324. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Time Restrictions

CCP §222.5 specifically prohibits arbitrary time limits: Specific unreasonable or arbitrary time limits shall not be imposed. In the past, some local and state court rules sought to impose time limits. However, this rule has long ago been withdrawn.

Continue reading "Sacramento Car Accident Trial Presents Constitutional Issues, Part 2 of 3" »

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff's Trial Brief on Jury Voir Dire: Personal Injury Case

California Law Provides for the Intelligent Exercise of Peremptory Challenges

Plaintiff, Hank Choo, by and through his attorney of record, hereby requests the right to have an adequate voir dire conducted by counsel. California Code of Civil Procedure (hereinafter CCP) §222.5. provides that following examination by the court:

"...counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause."

Since the purpose of voir dire is intended to select a fair and impartial jury in civil trials (CCP §222.5), the statute provides:

"During any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case." For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Because of the need for follow up questions, justice may on occasion require counsel to cover the same subject or similar questions to those posed by the court. CCP §222.5 recognizes this fact, and states: The fact that a topic has been included in the judge's examination should not preclude additional non-repetitive or non-duplicative questioning in the same area by counsel.

Continue reading "Jury Selection Issues Arise In Sacramento Car Accident Trial, Part 1 of 3" »

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Officer Smith's Traffic Collision Report Should Be Excluded

Vehicle Code §20013 sets forth the rule regarding the admissibility of police reports. It states in pertinent part: "No such accident report shall be used as evidence in any trial, civil or criminal arising out of an accident ... "

In Box v. California Date Growers Association (1976) 57 Cal.App.3d 266, the court applied Vehicle Code §20013 when it properly excluded the officer's police report following a motorcycle versus truck accident. The Court of Appeals affirmed the lower court's decision that the Highway Patrol Officer's traffic report was not admissible. Thus, in the present case Officer Smith's Traffic Collision Report should be excluded in its entirety pursuant to Vehicle Code §20013 and the above-cited authority. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Highway Patrol Officer Smith Is Not A Qualified Expert Witness And His Testimony Lacks Foundation

California Evidence Code §720 states: (a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

In the present case, defendants have not demonstrated a foundation that Officer Smith has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject of automobile ownership. Further, there is no foundation of reliability of information the officer used to form the opinion stated. Thus, any testimony on this subject by Officer Smith should be excluded because he is not qualified to testify as an expert on this subject.

Continue reading "Admissibility Of CHP Collision Report Challenged In Sacramento Car Accident Case, Part 3 of 3" »

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Likewise, in the present case, any conclusions reached by the police officer who investigated the accident should not be allowed by this court. More specifically, the officer's opinions and conclusions in the police report or in the form of testimony should not be allowed.

In Francis v. Sauve (1963) 222 Cal.App.2d 102, the court analyzed the issue in greater detail. The court reiterated that a police officer may testify as to the point of impact when his opinion is based upon percipient observations. The court discussed its refusal to admit into evidence expert opinions in traffic accident cases where the factors involved are too varying and too indefinite to constitute the basis of an opinion, such as the probable course of the cars after impact (Fishman v. Silva (1931) 116 Cal.App. 1). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Moreover, this issue was litigated during the State Farm's motion for summary adjudication, which was denied. The defense attempted to have the issue of whether there was insurance coverage decided by the California Highway Patrol officer. State Farm's UMF #6 and plaintiff's objection:

6. Officer David Smith determined at the scene of the accident that Plaintiff Hank Choo is the owner of the 2000 Range Rover driven by plaintiff.

6. Objection: Police officer's determination of ownership is irrelevant. Waller v. Southern Cal. Gas Co. (1959) 170 Cal.App.2d 747, 755

Continue reading "Sacramento Automobile Driver Rear-Ended In Highway Accident, Part 2 of 3" »

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff' Hank Choo’s Motion in Limine to Exclude Opinion Evidence of Highway Patrol Officer and Traffic Collision Report, and Limitation of Testimony at Trial

Plaintiff requests of the court an order in limine prohibiting the attorneys for all parties offering evidence of, or making any reference to, any conclusions and/or opinions referred to in the Traffic Collision Report generated by Highway Patrol Officer David Smith.

Preliminary Statement

This action arises from an automobile accident that occurred on August 9, 2008, when the defendant crashed her vehicle into the rear of a 2000 Range Rover plaintiff was driving. Plaintiff anticipates that defendants will attempt to introduce evidence of Highway Patrol Officer Smith's opinion that plaintiff Hank Choo was the owner of the 2000 Range Rover. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Opinions In Police Reports Or Elicited By Way Of Testimony Are Inadmissible

It is well settled that as a general rule opinions of police officers should not be admitted in automobile accident cases. Waller v. Southern California Gas Company (1959) 170 Cal.App.2d 747. In Waller, the court correctly disallowed the opinion of the police officer as to whether which party, if any, had violated the right of way.

Continue reading "Sacramento Car Accident Leaves Man With Catastrophic Injuries, Part 1 of 3" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Victor Lee was convicted in Miami, Florida in 1978 of felony drug possession. There have been no subsequent felonies. Defendants respectfully request that any evidence of or reference to defendant Lee’s 30-year-old conviction is only intended to mislead and prejudice the jury, and convey irrelevant character evidence, and should thus be prohibited from mention. This conviction is three decades old and has no bearing on Mr. Lee’s credibility today, thirty years after the fact. Mr. Lee has been straightforward in his testimony about the motor vehicle accident in which he was involved in this case. There is no similarity between the conduct involved in the felony offense and the conduct of Mr. Lee alleged in this case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Reference to or the introduction of evidence of this remote felony conviction has no probative value and would be highly prejudicial to defendants in that it would unfairly convey the impression that Mr. Lee’s conviction in the early 1970s is relevant to his character today and of his conduct in the subject motor vehicle accident. And would undoubtedly mislead and confuse the jury into believing that such evidence would somehow be probative of the ultimate issues in this case. Further, the introduction of such evidence would require time-consuming rebuttal by defendants.

Continue reading "Defendant Fights Admission Of Prior Felony In Sacramento Car Accident Lawsuit, Part 3 of 3" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

THE COURT SHOULD EXCLUDE EVIDENCE THE PROBATIVE VALUE OF WHICH IS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICIAL IMPACT OR HAS THE RISK OF MISLEADING OR CONFUSING THE JURY

Evidence Code section 352 gives the Court discretion to exclude evidence if its admission will necessitate the undue consumption of time, or if its probative value is substantially outweighed by a substantial danger of undue prejudice, confusion of issues and misleading the jury. (Evidence Code §352.) Pursuant to Evidence Code section 352, the court should weigh the probative value of proffered evidence against the probability that it will create a substantial danger of undue prejudice. (People v. Murphy (1979) 8 Cal.3d 359.) If the Court finds that the probative value of the proffered evidence is weak and a danger of undue prejudice is strong, then it should rule that such evidence is inadmissible. (People v. Stanley (1967) 167 Cal.2d 812.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There are a number of different factors with which to determine the strength or weakness of the probative value of evidence. Among the factors which the court should consider are the following:

Its materiality;
The strength of its relationship to the issue upon which it is offered;
Whether it goes to a main issue or merely a collateral one; and
Whether it is necessary to prove the proponents case or merely cumulative to other available and sufficient proof.

(Burke v. Almaden Vineyards, Inc. (1978) 86 Cal. App.2d 750.)

Continue reading "Sacramento Bus Driver Catastrophically Injures Rental Car Driver, Part 2 of 3" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Defendants’ Motion In Limine to Exclude Reference to 30-Year-Old Prior Felony Conviction

Defendants Victor Lee and XYZ Car Rental Of Sacramento hereby move this court, in limine, before jury selection at the trials commencement for an order instructing plaintiff, his counsel, and each and every one of plaintiffs witnesses, not to mention, interrogate on, or in any other manner convey to the jury whether during voir dire, opening statement, testimony, final argument, or otherwise, any reference to or evidence of defendant Victor Lee’s 30-year-old felony conviction. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This motion is based on the ground that the probative value on credibility of said felony conviction is outweighed by the risk of undue prejudice and that argument about or reference to or admission of such evidence regarding defendant is not relevant and should be precluded on the ground that its entry would be more prejudicial than probative.

THE TRIAL COURT POSSESSES THE INHERENT POWER TO GRANT MOTIONS IN LIMINE AND SUCH MOTIONS ARE A WELL ESTABLISHED METHOD OF EXCLUDING INADMISSIBLE EVIDENCE

Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.

Continue reading "Sacramento Car Accident Victim Sues Rental Car Company, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

The Evidence Presented by Plaintiff at Trial Constitutes "Significant Evidence."

During the course of this trial, there was significant evidence with regard to the brain injury, and other physical injuries, suffered by Sandra White. Every medical expert, plaintiff and defense, agreed that she did indeed suffer a traumatic brain injury. Further, the testimony of plaintiff’s experts and defendant's experts as to the extent of Ms. White's injuries was not identical, but that is surely to be expected. The mere fact that there was contradicting expert opinion evidence does not diminish the solid value of the evidence presented. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, plaintiffs provided significant evidence not only by way of expert opinion, but also through testimony of Ms. White's family that was consistent with what was seen on the "sub rosa" videotape. There was no significant "contradiction," as defendant suggests, that would be sufficient to support a granting of a JNOV. Rather, plaintiff put on substantial evidence in support of her injuries and the verdict in this case. Even defendant's experts confirmed that Ms. White had a brain injury and multiple physical injuries as a result of this collision. Thus, this court should deny defendant's Motion for a Judgment Notwithstanding the Verdict.

Continue reading "City Police Officer Leaves Sacramento Car Accident Victim With Life-Threatening Injuries, Part 10 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this traumatic brain injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

In Hewitson, and similarly in Rives, the court concluded that the "trial court's determination of the value of a particular asset [closely held corporation] is a factual one and, if there is substantial evidence to support it in the record, the determination must be upheld on appeal." Hewitson, 142 Cal.App.3d at 885. The court continued its explanation by stating that if such determination is based solely or in large part on the opinion of an expert, the determination will not be upheld on appeal, unless the opinion satisfies the standard of admissibility set forth in Evidence Code section 801. Id. (citing In re Marriage of Rives (1982) 130 Cal.App.3d 138, 149-151; cf.. Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382, 389-390). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Hewitson court then goes on to explain that Evidence Code section 801, in dealing with the admissibility requirements of opinion testimony by an expert witness, provides in subdivision (b) thereof, three separate but related tests that a matter must meet to serve as a proper basis for an expert opinion. First, the information used must come from (a) the witness' personal observation, or (b) the witness' personal knowledge, or (c) an assumption of facts finding support in the evidence. Second, the matter about which the opinion is based must be of a type upon which the expert may reasonably rely. Third, an expert may not base his opinion upon any matter held to be improper as the basis of an expert opinion by constitutional, statutory, or decisional law. Id. (citing People v. Plasencia (1983) 140 Cal.App.3d 853, 857).

Continue reading "City Defendant Seeks To Overturn Jury Verdict For Sacramento Car Accident Victim, Part 9 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

The mere fact that plaintiff's experts had no knowledge of a video clip from a couple of minutes out of one day in Sandra White's life that was six months prior to the trial in this matter does not discredit or otherwise diminish the evidence, before the jury that determined Ms. White's future care needs. While defendant argues that plaintiff’s experts' opinions were "based upon improper or unwarranted matters," and as such the "judgment should be reversed," defendant relies solely on the "sub rosa" videotape that was played before the jury.

The twelve jurors in this matter that found in favor of Sandra White also saw this video and had the opportunity to weigh the credibility of both plaintiff’s experts and defendant's experts in light of all the evidence, including the "sub rosa" videotape. This court should not now usurp that function and make credibility determinations and weigh evidence, which is contrary to the function of the court when evaluating a motion for JNOV. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant's Analogy Is Easily Distinguished From this Case

Defendant provides an analogy by referencing In re Marriage of Hewitson and In re Marriage of Rives as support for the proposition that plaintiff’s experts' testimony does not constitute substantial evidence.

Continue reading "Sacramento Jury Awards Car Accident Victim Huge Damages, Part 8 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

However, plaintiff's experts testified not only to plaintiffs physical limitations, but also to her traumatic brain injury and to her continued future need for care in a supportive environment. Even defendant's medical and neurological experts, during their trial testimony, agreed that plaintiff Sandra White did in fact suffer a traumatic brain injury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Regarding defendant's seven purported "false assumptions" that supposedly make the evidence presented in this case "insignificant," plaintiff responds as follows:

Not one of plaintiff's witnesses was aware of the "sub rosa" video prior to their testimony. Despite defendant's contention that the sub rosa contradicts the weight of the evidence, plaintiff’s family testified 1) that plaintiff was able to leave the house by herself on occasion and in fact had confusedly wandered in the neighborhood on occasion; 2) that plaintiff was able to dress herself on occasion, but more frequently than not needs assistance; 3) that plaintiff could move her arm somewhat, and that her movement and rotation in her left arm had reduced over recent months; 4) that plaintiff required supervision and was not the same since the collision and that the family tries to watch her as much as they can; 5) that plaintiff could walk unassisted on occasion, having good days and bad days.

Continue reading "Life-Altering Car Accident Leaves Sacramento Woman With Millions In Hospital Bills, Part 7 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

THE VERDICT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE

Defendant contends that a miscarriage of justice will be promoted if the verdict stands and further contends that the verdict is not based upon substantial evidence. Defendant's contention is plainly wrong for several reasons.

First, defendant does not challenge the finding of liability in this matter and is thus not entitled to a JNOV in that regard. Further, defendant suggests that because plaintiff’s experts were not aware of the sub rosa videotape at the time of their testimony, and that "sub rosa" videotape simply wipes away any and all evidence of injuries to plaintiff Sandra White. However, plaintiff presented evidence that was sufficient to "reasonably inspire confidence," and support the verdict, as such defendant is not entitled to a JNOV as to the damage award and defendant's JNOV motion should be denied in its entirety. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant Erroneously Contends that Plaintiffs Experts Relied on False Assumptions

Defendant argues that plaintiffs experts relied on false assumptions, including 1) that plaintiff was unable to leave the house by herself; 2) that plaintiff was unable to dress herself; 3) that plaintiff could not move her arm and needed shoulder surgery; 4) that plaintiff required 24-hour supervision; 5) that plaintiff could not walk unassisted; 6) that plaintiff would not be allowed to smoke; and 7) that plaintiff could not conduct a transaction by herself. Defendant suggests that the "sub rosa" video contradicts all of these alleged false assumptions. (See Part 7 of 10.)

Continue reading "Car Accident Victim From Sacramento Suffers Catastrophic Injuries, Part 6 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

A party may rely upon "reasonable inferences" from the evidence to support a verdict. Hauter, 14 Cal.3d at 110. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established. Cal. Evid. Code, § 600; See also Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21. Further, in evaluating a JNOV notion, any conflicting evidence is resolved against the moving party; and the party in whose favor the verdict was rendered is entitled to the benefit of every favorable inference which may reasonably be drawn from the evidence and to have all conflicts in the evidence resolved in his favor. Castro v. State of California (1981) 114 Cal.App.3d 503 (emphasis added); see also Fountain Valley Chateau Blane Homeowner's Ass'n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, a judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law. Moore v. San Francisco (1970) 5 Cal. App. 3d 728, 733-734 (referencing Palmer v. Agid (1959) 171 Cal.App.2d 271). A JNOV motion must be denied if substantial evidence supports the verdict. Begnal v. Canfield Assocs., Inc. (2000) 78 Cal.App.4th 66; Campbell v. Cal-Gard Surety Svs., Inc. (1998) Cal.App.4th 563; Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal. App. 4th 206, 218.

Continue reading "Auto Accident On Sacramento Freeway Leaves Victim With Brain Injury, Part 5 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

In its case in chief, the City presented testimony of its medical experts, Christine Jones, M.D, Barry Stein, M.D., and David Hernandez, M.D. The City's accident reconstructionist, Scott Black, also testified. Additionally, defendant City played for the jury a "sub rosa" videotape of plaintiff Sandra White. The defendant City, however, did not call its designated experts David Hall (economist), Gene Perry (life care planner), or Charles Small, Ph.D. (neuropsychologist).

The jury in this matter returned a unanimous verdict in favor of the plaintiff, Sandra White, in the amount of $6,872,001.00, $426,636.00 for past economic loss and $6,445,365.00 for future economic loss. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

LEGAL STANDARD FOR A JUDGMENT NOTWITHSTANDING THE VERDICT

A Judgment Notwithstanding the Verdict ("JNOV") challenges the legal sufficiency of the evidence, essentially asking whether the evidence was sufficient to prove the claims or defenses asserted and now embodied in the jury's verdict. See Hauter v. Zogarts (1975) 14 Cal.3d 104; Clemmer v. Harford Ins. Co. (1978) 22 Cal.3d 865. For purposes of a JNOV, all evidence supporting the verdict is presumed true, making the issue whether the facts, when presumed true, constitute a prima facie case or defense as a matter of law. Moore v. San Francisco (1970) 5 Cal.App.3d 728; Fountain Valley Chateau Blanc Homeowner's Ass'n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743.

Continue reading "Highway Car Accident Leaves Sacramento Woman With Catastrophic Brain Injury, Part 4 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As a result of the impact severity, Ms. White was knocked to the other side of the vehicle, despite her use of the passive restraint system within the vehicle. She was rendered unconscious and was in a coma for many days following the crash. She suffered a severe brain injury, cracked hip bones, a cracked skull and subdural hematoma, large lacerations on her head, a ruptured spleen, and many other related serious and life threatening injuries. She spent roughly the next two months in hospitals and in rehabilitation. Eventually she suffered gaping wounds in her buttocks, leaving her disfigured. Further, testimony was given that showed Ms. White was rendered permanently brain damaged by this avoidable collision.

Prior to this catastrophic car crash, Sandra White, a mother and grandmother, had a functional life filled with the typical array of ups and downs. Testimony was given that prior to this collision, Ms. White took care of her parents, enjoyed friends, and had relatively good health. She did have anxiety problems and, according to the experts, had mental illness in the form of schizophrenia. Yet she was functional and lived independently. Now, she needs help with most daily tasks and requires supervision. When she left the nationally renowned rehabilitation center in Roseville, California, Universal Trauma Rehabilitation, she developed many life survival skills so she could re-integrate into the world with the help of others. But she still was a danger to herself and others, easily confused, easily fatigued, and in constant pain. She requires assistance from skilled nurses.

Continue reading "Sacramento Woman Suffers Traumatic Brain Injury In Car Accident, Part 3 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, Folsom, El Dorado Hills, West Sacramento, or Elk Grove. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

From his own testimony, Mr. Black froze, bringing his vehicle to a stop as it straddled the #2 lane (slow lane) on the Highway 50 westbound, directly in the path of travel of Officer Smith. Smith then slammed on the brakes and tried to steer away from the vehicle in his path by turning his wheel to the right, then skidding. Officer Smith left two parallel skid marks. Smith swerved and braked to avoid Black's Impala then slammed directly into the side of Ms. White's 1995 Nissan Altima. The impact was so severe, it crushed the vehicle to the midline of the occupant compartment; she was hit at 30-40 m.p.h. at impact. Only five inches of metal on the side of her vehicle stood between her and the oncoming battering ram of the front end of the police vehicle. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

During the trial, counsel stipulated to the fact that Ms. White was not in any way at fault for the collision. The stipulation was read to the jury. The jury returned a plaintiff’s verdict, determining that Officer Smith was 55% at fault for this collision and that Ken Black was 45% at fault for the cause of the collision. Defendant has not challenged this finding by way of defendant's Motion for Judgment Notwithstanding the Verdict. (See Part 3 of 10.)

Continue reading "Sacramento Woman Struck By Cop In Auto Accident, Part 2 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, Folsom, El Dorado Hills, West Sacramento, or Elk Grove.

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

This opposition by plaintiff is made and based on the Memorandum of Points and Authorities attached hereto, the evidence presented at the trial in this matter, the reporters' transcripts of the trial proceedings, and upon such argument and further evidence as may be presented at the hearing thereof. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS & AUTHORITIES

INTRODUCTION

On September 9, 2005, a completely avoidable high-speed collision between two vehicles occurred on Highway 50 at the onramp of Watt Avenue shortly before midnight. Sacramento law enforcement officer William Smith was rocketing down the road, eastbound, with two county probation officers in his vehicle, returning from a police matter in an unrelated incident. Smith was not authorized to be speeding, and he testified he had no right to do so. According to Smith, he was not driving in an emergency fashion, or otherwise permitted to be operating under "Code 3" conditions. Therefore, it is undisputed that he had, at all times relevant, an obligation to adhere to the same rules of the road as a motor vehicle operator as any other citizen.

Continue reading "Speeding Law Enforcement Officer In Car Accident With Sacramento Woman, Part 1 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

DR. BLACK’S RELIANCE ON CASES AFTER JUDGMENT OR VERDICT IS MISPLACED - PLAINTIFF NEED NOT PROVE THAT HE SHOULD BE AWARDED PUNITIVE DAMAGES AT THE PLEADINGS STAGE OF THE LITIGATION

Dr. Black relies on Ebaugh v. Rabkin, (1972) 22 Cal.App.3d 891, which is not applicable to plaintiff's First Amended Complaint. Ebaugh concerned the reversal of a jury's award of punitive damages because the evidence was insufficient to support the verdict for punitive damages against the employee and employer. There was also prejudicial error because one of the jury instructions permitted punitive damages against the employer if it found the employee was acting in a willful, reckless or wanton manner without regard to the employer's conduct in directing or ratifying the employee's actions. Id. at 895-896. Ebaugh does not apply to this stage of the litigation since it was an appeal of a jury verdict at trial. The standard for meeting the burden of proof to overturn a jury verdict is certainly different from the notice pleading requirements of California law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Black cites the following cases, all after judgment, verdict or nonsuit, which do not support granting her motion to strike since the cases do not concern the pleadings stage of litigation: American Airlines, Inc. v. Sheppard, Muffin, Richter & Hampton (2002) 96 Cal.App.4th 1017; Cloud v. Casey (1999) 76 Cal.App.4th 895; Tomaselli, 25 Cal.App.4th 1269; Mock v.-Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306; Roth, 185 Cal.App.2d 676; Fick, 98 Cal.App.2d 683; Spencer v. San Francisco Brick Co. (1907) 5 Cal.App. 127.

Continue reading "Sacramento Jogger Struck By Doctor's Car In Sidewalk Accident, Part 11 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

PUNITIVE DAMAGES ARE PERMISSIBLE IN THIS NEGLIGENCE ACTION

The California Supreme Court has determined there are circumstances under which punitive damages can be awarded in unintentional tort actions. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004. In particular, the Supreme Court has upheld punitive damages in cases of negligent driving. See Peterson v. Superior Ct. (1982) 31 Cal.3d 147; Taylor v. Superior Ct. (1979) 24 Cal.3d 890, 894.

In Taylor, the Supreme Court explained the availability of punitive damages to plaintiffs in motor vehicles tort actions:

A conscious disregard of the safety of others may constitute malice within the meaning of Section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully [sic] and deliberately failed to avoid those consequences. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Id. at 895. (emphasis added.) Taylor and Peterson are directly applicable to this case. Plaintiff's prayer for punitive damages, which is based on Dr. Black’s awareness of the probable dangerous consequences of operating a vehicle under fatigue and while asleep and her actions of deliberately failing to avoid the dangerous consequences by driving in a fatigued state, is undeniably supported by current California law.

Continue reading "Punitive Damages Sought Against Sacramento Physician And Hospital For Car Accident, Part 10 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

The First Amended Complaint does not contain mere allegations that the defendant's actions were carried on with willful and conscious disregard of the rights of others. In this regard, Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 and Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 163 are inapposite to the present case. Unlike Brousseau and Grieves, Plaintiff did not merely allege that defendant's actions were "willful" or "malicious." Plaintiff refrained from making the sort of conclusory arguments that were scorned in Brousseau and Grieves, the claims for punitive damages in Brousseau and Grieves were not based on specific facts. In this case, plaintiff pled approximately 4 pages of detailed facts specifically alleging Dr. Black acted without regard for the safety of others in her operation of a vehicle while sleeping. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As alleged throughout the First Amended Complaint, Dr. Black was incompetent and unfit to safely operate a vehicle because she was fatigued. From her residency training, she knew that she was a foreseeable threat to the health and safety of the public if she drove in a fatigued or sleepy condition. She deliberately was disregarding the high probability that she would fall asleep behind the wheel and cause permanent harm to another person. Despite her acute knowledge of the high risk of injuring someone with the vehicle, Dr. Black consciously chose to drive home while in a fatigued, sleep-deprived and exhausted condition. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Hospital Sued For Car Accident Caused By One Of Its Doctors, Part 9 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

Since plaintiff's allegations are based on facts, not mere speculation, the present case is consistent with the decisions cited in defendant's moving papers, i.e., College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 [plaintiffs failed to plead facts regarding defendants' intent to injure or facts of vile or despicable conduct]; Colonial Life &Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 792 [a defendant may be liable for punitive damages if it acts with a conscious disregard of the plaintiff's fights]; Lackner v. North (2006) 135 Cal.App.4th 1188 [summary adjudication of plaintiff's punitive damages claim was proper since plaintiff's evidence failed to show defendant acted despicably]; Hilliard v. AM. Robbins (1983.) 148 Cal.App.3d 374, 391 [plaintiff improperly alleged a separate cause of action for punitive damages instead of pleading the. statutory language in the negligence and strict liability causes of action]; Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1, 8 [plaintiff did not plead any facts relative to malice]; Roth v. Shell Oil Co. (1960) 185 Cal.App.2d 676; and Fickv. Nilson (1950) 98 Cal.App.2d 683.

Plaintiff has alleged that Defendant knowingly and willfully decided to drive home after working excessive hours on the night of the incident, in spite of residency training that stated operating a vehicle under those conditions was likely to result in physical harm. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Injured Sacramento Car Accident Victim Seeks Damages From Doctor, Part 8 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF HAS PLED SUFFICIENT FACTS TO ESTABLISH THAT DR. BLACK’S CONDUCT WAS DESPICABLE AND WITH A WILLFUL AND CONSCIOUS DISREGARD FOR THE SAFETY OF PLAINTIFF

Plaintiff seeks punitive damages against Dr. Black pursuant to Civil Code Section 3294, which states in pertinent part:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
(c)(1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(c)(2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As established above, under California's notice pleading requirement, plaintiff only has to plead ultimate facts sufficient to apprise defendant of the basis upon which plaintiff is seeking relief. Here, Plaintiff has sufficiently alleged that Dr. Black's actions fit within the meaning of C.C. § 3294. In unambiguous language, plaintiff has described Dr. Black's actions in paragraphs 14, 15, 29-32, 37-39 and 42 of the First Amended Complaint that amount to malice and oppression, i.e., despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

Continue reading "Reckless Behavior By Sacramento Physician-Resident Causes Car Accident, Part 7 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

The majority of the new allegations in the First Amended Complaint describe the residency training that Dr. Black should have heeded in order to avoid causing the subject auto accident. Dr. Black was provided training at Central Hospital, prior to the incident, about the specific risk posed to the public by fatigued or sleep-deprived medical residents. The article "Extended Work Shifts and the Risk of Motor Vehicle Crashes Among Interns," published by the New England Journal of Medicine on January 13, 2005, was just one of many scientific journal articles offered to Dr. Black on the subject. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The collective information regarding Dr. Black's training is directly relevant to the action and establishes the fact that Dr. Black was acutely aware of the dangerous risks posed to the public, including plaintiff, by driving home in a fatigued or sleepy condition after being awake for a continuous 18 hours. Plaintiff has sufficiently, and with much detail, alleged the many ways in which Dr. Black acted with malice and oppression by willfully disregarding her relevant training on many levels. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The present case is highly distinguishable from Austin v. Regents of Univ. of California (1979) 89 Cal.App.3d 354, where the Court held, ... the allegations in plaintiff's complaint are purely conclusory.

Continue reading "Fatigued Sacramento Doctor Causes Auto Accident, Part 6 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

ARGUMENT

LEGAL STANDARD ON MOTIONS TO STRIKE

Motions to strike are not favored. Weil & Brown, Civil Procedure Before Trial, § 7:197. The policy of California law is to construe the pleadings "liberally" ... with a view to substantial justice. C.CP. § 452.

Plaintiffs First Amended Complaint meets the notice pleading requirements under California law. What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkins v. Superior Ct. (1981) 117 Cal.App.3d 1, 6. Specificity is not required in the Complaint "because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading." Ludgatelns. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App.4th 592, 608.

The First Amended Complaint adequately informs Dr. Black of the damages sought and the legal bases for those damages. Since Plaintiff has met the notice pleading requirements, Dr. Black's motion to strike should fail on all accounts. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PARAGRAPH 32 SHOULD NOT BE STRICKEN SINCE PLAINTIFF'S ALLEGATIONS ARE FACT-SPECIFIC AND ESTABLISH IN DETAIL HOW DR. BLACK ACTED WITH MALICE AND OPPRESSION

Continue reading "Injured Auto Accident Victim Seeks Punitive Damages From Sacramento Doctor, Part 5 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF HAS SUFFICIENTLY ALLEGED FACTS THAT ESTABLISH MALICE AND OPPRESSION ON THE PART OF DR. BLACK

Plaintiff specifically pled a variety of facts - not conclusions - supporting the allegations of malice and oppression against Dr. Black.

The following facts pertaining to Dr. Black's conduct were pled, providing sufficient basis for punitive damages:

At said time and place, Defendant Olivia Black, M.D. was driving the subject vehicle east on Oak Street. Defendant Olivia Black, M.D. knowingly and intentionally got behind the wheel while fatigued, sleepy and in an impaired condition, fell asleep while driving and drove the subject vehicle east on Oak Street and up and onto the raised sidewalk and struck the pedestrian plaintiff from behind. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant Olivia Black, M.D., failed to use reasonable care while negligently, and also wantonly and recklessly with malice and oppression, knowingly and intentionally got behind the wheel while fatigued, sleepy and in an impaired condition, fell asleep while driving and drove the subject vehicle east on Oak Street and up and onto the raised sidewalk and struck the pedestrian plaintiff from behind.

Continue reading "Pedestrian From Sacramento Hit On Sidewalk By Physician's Car, Part 4 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

STATEMENT OF FACTS

FACTUAL ALLEGATIONS THAT SUPPORT PRAYER FOR PUNITIVE DAMAGES

On June 16, 2007, shortly before 1:00 p.m., plaintiff, a pedestrian, was safely jogging on the eastern sidewalk of Oak Street, near the intersection of Main Street, in Sacramento. Dr. Black was driving east on Oak Street. Knowingly and intentionally driving in a fatigued and sleepy condition, Dr. Black fell asleep while driving and drove up and onto the raised sidewalk and struck plaintiff from behind. Plaintiff flew violently onto the hood and smashed into the windshield, then onto the roof. (Id.) Plaintiff was carried approximately 59 feet east before being thrown off the top of the vehicle. (Id.) Dr. Black, while still asleep, then dragged plaintiff approximately 38 feet where she ultimately ran over him. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Over the night of June 15-16, Dr. Black was working as a medical resident at Central Hospital in Sacramento, California, which is owned and operated by defendant Sacramento County Medical Center ("SCMC"). Plaintiff alleged that immediately prior to the incident, Dr. Black worked excessive hours, including, but not limited to, an overnight shift after inadequate sleep and without any rest. (Id. 15.)

Continue reading "Sacramento Physician Falls Asleep While Driving, Then Strikes Pedestrian, Part 3 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff also sufficiently alleged facts that established how Dr. Black acted with oppression by subjecting plaintiff to serious physical injuries in knowing disregard of his right to safety. (Id.) Given defendant’s training at Central Hospital, Dr. Black should have avoided driving home on June 16, 2007. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff's allegations supporting his punitive damages claims are not irrelevant or conclusory. The allegations set forth actual facts regarding Dr. Black's extensive training on how to acknowledge and avoid the dangerous conduct that gave rise to the present litigation. Facts establishing Dr. Black's training on fatigue and sleep-deprivation are directly relevant here.

Further, Dr. Black's decision to drive while impaired is no different than a person driving under the influence of drugs or alcohol with conscious disregard for the safety of others. Punitive damages are routinely pled in motor vehicle accident cases where the defendant was driving under the influence. See, e.g., Peterson v. Superior Ct. (1982) 31 Cal. 3d 147; Taylor v. Superior Ct. (1979) 24 Cal.3d 890, 894. In fact, plaintiff is clearly entitled to plead punitive damages under statutory and common law rights controlling his causes of action. Those include: Civ. Code § 3294; Potter v. Firestone & Rubber Co. (1993) 6 Cal.4th 965, 985; Taylor, 24 Cal.3d at 894.

Continue reading "Doctor From Sacramento Hospital Causes Horrific Car Accident, Part 2 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff Paul Wong’s Opposition to Defendant Olivia Black, M.D.'s, Motion to Strike Punitive Damages from the First Amended Complaint

INTRODUCTION

On June 16, 2007, at approximately 1:00 p.m. in the afternoon, defendant Olivia Black, M.D., fell asleep while driving her car and struck plaintiff, Paul Wong, as he was jogging on the sidewalk. Dr. Black caused Mr. Wong to sustain serious and permanent injuries, including: traumatic brain injury, post-traumatic stress disorder, thoracic spine fractures, left fibula fracture, multiple lacerations, severe abrasions (road rash) from his upper back, arms, knees, thighs and toes, and contusions. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As part of her training at Central Hospital, Dr. Black was taught about the dangerous probable consequences of operating a motor vehicle while sleepy, sleep-deprived, or fatigued. Despite the training, Dr. Black, who is to “do no harm” as a physician, left Central Hospital where she had been working and awake for at least 18 consecutive hours, and drove home in a sleepy and fatigued condition. She was significantly impaired and unable to drive anywhere safely.

Continue reading "Sacramento Man Suffers Catastrophic Injuries In Car Accident, Part 1 of 11" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Plaintiff testified at trial that he currently has pain in the left hip/pelvis area which he rates as a 3 on a scale of 0-10. He did experience more acute flare ups 1-2 times a year since the car accident he has been released back to work and has returned to Dr. Black, who has sent him to physical therapy and taken him off work for a week or two. Dr. Black testified that he expected plaintiff would have on-going pain for 3-5 years following the accident however, because it was already 3.5 years after the accident, he would expect that plaintiff will have the on-going pain for another 1.5 years. The jury's award for future medical expenses ($720) and future lost earnings ($4,250) were not substantial.

Based on the above evidence, the award of $190,000 for past pain and suffering and $80,000 for future pain and suffering was excessive and not based on the evidence presented at trial. A new trial should be granted.

In the Alternative, The Court Should Remit The Award.

As noted above. Code of Civil Procedure section 662.5(b) sets forth the procedure whereby the court may deny a motion for a new trial conditioned upon acceptance of a reduction of the award. In general, the trial judge has discretion to grant a new trial or the grounds of excessive damages, and it is the court's duty to grant such a new trial or provide for a reduction of a verdict if, under the circumstances, it believes the jury's award is excessive. (Bazzoli v. Nance's Sanitarium, inc. (1952) 109 Cal.App.2d 232.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Two-Vehicle Car Accident Results In Injuries To Sacramento Motorcyclist, Part 6 of 6" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

LEGAL DISCUSSION

THE COURT HAS A DUTY TO SET ASIDE AN EXCESSIVE VERDICT UNSUPPORTED BY THE EVIDENCE.

A New Trial Should Be Granted Because The Award for Past and Future Pain and Suffering by the Jury Was Unsupported by the Evidence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Court has authority and the power in this case to reweigh the evidence independently from that of the jury to determine whether the past pain and suffering and future pain and suffering award was excessive.

Defendant maintains that the amounts award by the jury for past and future noneconomic damages is simply unsupported by the evidence. To that end, the evidence at trial demonstrated that plaintiff suffered only soft tissue injuries. Plaintiff testified at trial that plaintiff's CT scans and x-rays taken at the hospital following the car accident were all negative.

None of plaintiff's doctors testified at trial that plaintiff required surgery or that he would require surgery in the future. Plaintiff's past medical bills were only $15,221 and there was no evidence presented at trial to suggest that plaintiff suffered enduring, severe injuries or pain as a result of the accident.

Continue reading "Motorcyclist From Sacramento Hit By Woman In Car Collision, Part 5 of 6" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Code of Civil Procedure §662.5(b) provides in pertinent part as follows:

In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion:

b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deciding a motion for new trial on excessive damages, the court has the power (and the responsibility) to reweigh the evidence:

A new trial shall not be granted upon the ground of ... excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. [CCP § 657]

In Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 CA4th 359, the jury awarded one plaintiff $300,000 in economic damages and the second plaintiff $250,000 in an employment discrimination case.

Continue reading "Car Accident Leaves Sacramento Man Seriously Injured, Part 4 of 6" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

THE VERDICT

The matter was submitted to the jury on February 5, 2008. On or about February 5, 2008, the jury rendered the following Special Verdict:

Past Medical Expenses: $15,221.75

Past Lost Earnings: $28,686.00

Future Medical Expenses: $720.00

Future Lost Earnings: $4,250.00

Past Pain and Suffering: $190,000.00

Future Pain and Suffering: $80,000.00

Total: $318,877.75

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In light of the evidence that plaintiff suffered only soft tissue injuries from the accident and had only $15,221.75 in past medical expenses defendant maintains that the jury award for past pain and suffering in the amount of $190,000 as well as the award for future pain and suffering in the amount of $80,000 was extremely excessive, and unsupported by the evidence. A new trial is warranted under the circumstances.

AUTHORITY

Code of Civil Procedure §657 outlines the basis for granting a new trial. In pertinent part, it provides:
The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

Continue reading "Sacramento Man Suffers Injuries After Car Hits His Motorcycle, Part 3 of 6" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Plaintiff next treated at Occupational Medical Center on July 14, 2004, with complaints of pain in the left thigh, left groin, pelvis, and left lower abdomen. He was diagnosed with a left thigh strain, left groin strain, abdominal wall strain, testicular contusion, left thigh contusion, chest wall contusion, and closed head injury. He was referred to physical therapy and placed on temporary disability. Plaintiff was evaluated again on July 19, 2004, at which time his complaints remained the same and he was to continue with physical therapy.

Plaintiff then waited more than two months after the car accident to seek further medical treatment, when he presented to orthopedic surgeon Dr. James Black on October 12, 2004, with complaints of pain in the lumbar spine, right buttock which radiated to the right foot, as well as pain in the left thigh and groin. He was referred to physical therapy. By a November 28, 2004 visit, it is noted that the physical therapy had improved his symptoms, and he was released to return to his job as an emergency responder for vehicles that are disabled on toll bridges, on or about November 29, 2004. Thereafter, plaintiff has only seen Dr. Black sporadically and returned to work at a physical job, with the exception of occasional flare ups where Dr. Black has taken him off work for short periods of time.

At the time of trial, plaintiff presented to the jury $15,221.75 in medical specials. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff testified at trial that he currently has pain in the left hip/pelvis area which he rates as a 3 on a scale of 0-10. He did experience more acute flare ups 1-2 times a year since he has been released back to work and has returned to Dr. Black, who has sent him to physical therapy and taken him off work for a week or two.

Continue reading "Jury Finds For Sacramento Man After Auto Accident Trial, Part 2 of 6" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Defendant Virginia Hall submits the following Memorandum of Points and Authorities is support of her Motion for New Trial or, in the alternative, remittitur:

INTRODUCTION

A new trial is warranted due to the imposition of excessive damages that were unsupported by the evidence. In the interests of justice, Ms. Hall's motion for new trial or, in the alternative, a reduction in damages must be granted.

BACKGROUND

This action arises out of an automobile versus motorcycle accident which occurred at 8:35 p.m. at the intersection of College Street and Ash Boulevard in Sacramento, California on June 12, 2004. Plaintiff was operation the intersection with Ash. As plaintiff entered the intersection, he collided with the 2002 Jaguar S-Type driven by defendant, Virginia Hall, who was turning left from southbound College Street onto eastbound Ash.

The matter proceeded to trial on February 2, 2008. Plaintiff testified at trial that following the accident with Ms. Hall, he stood up and walked over to the curb. When he got to the curb, he sat down and felt pain in his back, as well as pain and weakness in his left leg. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff was taken to University Hospital following the incident, with complaints of pain in his lower left extremity. Plaintiff did not sustain any broken bones from the accident.

Continue reading "Sacramento Woman Fights Car Accident Jury Trial Verdict, Part 1 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Moreover, the Notice of Independent Medical Examination of plaintiff expressly states: Further, the scope of said examination shall include and require a history to be given by plaintiff, as well as possible X-rays and any and all clinical and laboratory tests as required by the examining physician. Such X-rays are necessary in light of plaintiff's alleged orthopedic injuries and claim of post-trauma arthritis.

This is clearly improper and grounds for objection. As stated by Weil & Brown, supra, Questioning plaintiff regarding medical history? The statute mentions only a physical examination. Nothing is said about the right to question the plaintiff regarding his or her injuries or prior medical history. Id., § 8:1520. Other demands are improper (e.g., demands for a complete medical history). Plaintiff may object and refuse compliance. Id., § 8:1529.

As for X-rays, Weil & Brown is again instructive:

Limit on X-rays: The Discovery Act reflects public concern regarding excessive exposure to X-rays. It allows an examinee to avoid submitting to X-ray examination by giving the examiner access to existing X-rays of the same portion of the examinee's body. In such event, no additional X-rays may be taken without the examinee's consent or on court order for good cause shown. [Ca Civ Pro § 2032.520]. Id., § 8:1580.

Finally, one of the terms by which Plaintiff agreed to submit to the defense medical examination was that Plaintiff's counsel receives a copy of the report, including any record review, within five days of the Defendants' receipt of said documents. Defendants' counsel would not agree to provide a copy of any record review, but merely with a copy of the "IME report." This is clearly improper, as the plaintiff is entitled to receive a copy of the full report. CCP § 2032.610.

Continue reading "Highly Improper X-Rays Demanded Of Sacramento Car Accident Victim, Part 5 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

PLAINTIFF'S OBJECTIONS TO DEFENDANTS' NOTICE OF MEDICAL EXAMINATION OF PLAINTIFF ARE WELL-FOUNDED

The relevant declarations and exhibits thereto paint a clear picture of the Defendants' intransigent refusal to comply with Code of Civil Procedure §§ 2032.220 and 2032.610, necessitating plaintiff's proper objections.

Plaintiff's Notice of Objection set forth objections to defendants' Notice of Independent Medical Examination, specifically that (a) the examination of a doctor chosen by the defense is not an independent medical examination, but rather a defense medical examination; (b) the date of the examination had not been cleared with Plaintiff or his counsel prior to its setting; (c) the statement defendant is informed and does not believe any clinical or laboratory testing will be necessary is ambiguous, as the statement must state that no clinical or laboratory testing will be performed; (d) x-rays as requested will not be allowed as said x-rays have not been shown to be necessary or indicated; and (e) the clinical and laboratory requests referred to in defendants' Notice will not be allowed as they are not indicated and such testing is inconsistent with the statement in their notice that "defendant is informed and does not believe any clinical or laboratory testing will be necessary."

The propriety of plaintiff's objection to calling the medical examination an "independent medical examination" or "IME" is obvious. Since the examining physician was chosen solely by the defendants and is paid by the Defendants, there is nothing "independent" about his examination of plaintiff, and to suggest by nomenclature that it is "independent" is deliberately misleading and deceptive. (Evidence Code § 352.)

Continue reading "Sacramento Car Accident Defendants Demand Intrusive Medical Exam, Part 4 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

There is no statutory authority permitting Defendants to apply ex parte for an order compelling the medical examination of the Plaintiff, thus Defendants' Ex Parte Application for such an order is fatally defective. Additionally, since Defendants' proposed Notice of Motion and Motion to Compel, submitted concurrently with their Ex Parte Application, fails to state the time, place, identity and specialty of the examiner, and the "manner, conditions, scope and nature of the examination" as required by CCP § 2032.310(b), and also fails to include a separate statement of disputed matters setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled, as required by California Rules of Court Rule 335(a)(6), it too is fatally defective.

It would be anomalous, if not absurd, to grant Defendants' request for an order shortening time to hear a noticed motion to compel that is, in and of itself, procedurally improper and defective.

Moreover, because the date noticed by Defendants for the medical examination of the Plaintiff, on October 24, 2006, has not yet arrived, Defendants' motion would in any event be premature because the issue has not yet ripened. Plaintiff has indicated to Defendants that he will submit to a defense medical examination provided that Defendants comply with the code sections governing medical examinations.

Continue reading "Defense Medical Examination Request Causes Dispute In Sacramento Car Accident Suit, Part 3 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Finally, defendants' Ex Parte Application for an Order to Continue Trial, Discovery Cut-Off and Time to Designate Expert Witnesses is without merit, as there is no reasonable basis for the relief they are seeking. If defendants would simply agree to conduct their medical examination of the plaintiff in conformity with the code requirements, there is no reason why the defense medical examination of plaintiff cannot proceed on October 24, 2006, thereby obviating the need for any continuance. If, on the other hand, defendants remain steadfast in their refusal to comply with the Code as it relates to the scope and conduct of defense medical examinations, their position can only be construed as a stalling tactic to avoid mediation and trial.

Such tactics do not warrant continuances that would be substantially prejudicial to the Plaintiff, who is prepared to participate immediately in a meaningful mediation in an effort to settle this case and, if necessary, to proceed to trial. The plaintiff should not be further prejudiced by Defendants' transparent stalling tactics. Accordingly, Defendants' Ex Parte Application for a Continuance of Trial, Discovery Cut-Off and Time to Designate Expert Witnesses should also be denied in its entirety.

A MOTION TO COMPEL A MEDICAL EXAMINATION CANNOT BE MADE EX PARTE; IT REQUIRES ADHERENCE TO NOTICED MOTION PROCEDURE

Code of Civil Procedure § 2032.250(a) states:

Continue reading "Sacramento Automobile Accident Victim Fights Intrusive Exam, Part 2 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

PLAINTIFF MILTON WHITE’S COMBINED OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF
MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Defendants' Ex Parte Application to Compel the Independent Medical Examination of plaintiff, is both procedurally defective and premature, and should thus be denied in its entirety. Defendants' motion to compel cannot be made on an ex parte basis, but requires a noticed motion. Defendants' motion is also premature, as the date noticed for the medical examination of car accident victim plaintiff Milton White has not yet arrived.

Further, defendants' proposed motion to compel submitted with their Ex Parte Application is equally defective, in that it fails to state the time, place, identity and specialty of the examiner, and the manner, conditions, scope and nature of the examination as required by CCP § 2032.310(b), and also fails to include a separate statement of disputed matters setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled, as required by California Rules of Court Rule 335(a)(6).

Additionally, defendants' request for monetary sanctions must be denied, not only because of the procedural impropriety of their Ex Parte Application, but also because the prejudice they complain of was visited upon themselves by their own dilatory conduct and their stubborn refusal to adhere to the statutory requirements governing the scope and conduct of defense medical examinations.

Continue reading "Sacramento Car Accident Victim Refuses Unnecessary Medical Exam, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Plaintiff has a long medical history of complaints regarding his lower back, neck, and left leg. Plaintiff was involved in an automobile accident in 1991, during which he reported sustaining back and neck injuries. He received three months of orthopedic treatment following this incident. Plaintiff also reported experiencing back and neck pain after a September 1995 automobile accident. Plaintiff saw a chiropractor for six months following the 1995 incident. Plaintiff later was involved in a mountain bike accident in 2002 following which he reported experiencing back pain. He received five months of chiropractic treatment after the biking accident.

On August 2, 2003 -- just one year prior to the subject accident -- plaintiff was involved in a rear end automobile accident during which he purportedly sustained soft-tissue, lower back and left leg injuries. Plaintiff received five months of treatment for back and left leg pain. An MRI was taken on November 11, 2003, and revealed mild stenosis due to a disc herniation at L2-3 as well as a posterolateral extrusion at L4-5, which probably was hitting the left nerve root causing the dorsal and plantar foot pain in the lower left extremity. Plaintiff underwent three epidural blocks between November and December 2003. Plaintiff eventually settled the claim against the driver who rear-ended his vehicle through the driver's auto insurer.

After the subject accident in September 2004, plaintiff consulted with an orthopedic surgeon, Dr. Mick Greene. Records subpoenaed from Dr. Greene reflect plaintiff admitted his belief that the August 2003 accident was the inciting event for his current complaints regarding back and left leg pain. However, plaintiff claims he was essentially asymptomatic at the time of the September 2004 accident, and that the subject accident re-exacerbated his symptoms.

Continue reading "Sacramento Man Suffers Back Injury In Car Accident, Part 5 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Miranda Towing has also been named as a defendant and cross-defendant based upon its position as the employer of Mr. Brown. Liability may be imposed against Miranda Towing under the permissive-user statute (Cal. Vehicle Code § 17150) and/or as the principal or employer of a negligent operator under the doctrine of respondeat superior. (See Vind v. Asamblea Apostolica, Christo Jesus (1957) 148 Cal.App.2d 597, 602-604.)

With regard to Vehicle Code § 17150, that statute provides that owners of a motor vehicle may be held liable for injuries to person or property resulting from a negligent or wrongful act or omission in the operation of a motor vehicle by any person using or operating the same with the permission of the owner. However, such liability is limited to the amount of $15,000 for the injury to one person in any one accident. (Cal. Vehicle Code § 17153.)

DAMAGES

Plaintiff's Claimed Injuries And His Extensive History Of Back, Neck, And Leg Pain

Plaintiff, who is 54-years-old, alleges he sustained injuries to his lower lumbar region and left leg as a result of the subject automobile collision. He claims he has pain down the left side of his leg to his foot, and pain in his left calf. He further claims he suffers tingling from his left knee to the bottom of his foot. He also complains of numbness on the bottom of his left foot.

Continue reading "Employer Sued For Sacramento Automobile Accident, Part 4 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The investigating officer could not make a determination of which party was most at fault due to the lack of physical evidence or an independent witness. None of the parties were cited as a result of the accident. The traffic collision report notes the parties stated that the driver of a red pick-up truck may have been a witness to the incident. However, none of the parties obtained the witness's contact information. Plaintiff confirmed during his deposition that he did not speak to the driver of the red pick-up truck after the vehicles pulled over following the multi-car collision.

Plaintiff commenced this action on September 9, 2005 by filing a complaint for personal injury damages against Mr. Lee, Paul Black, and Universal Market Service, Inc. Paul Black and Universal Market Service were named as the employers of Mr. Lee under a vicarious liability theory. Mr. White has filed Doe amendments to the complaint and named Mr. Brown and Miranda Towing.

On December 20, 2005, Mr. Lee, Paul Black, and Universal Market Service filed a cross-complaint for comparative indemnity and declaratory relief against Mr. Brown and Miranda Towing. An amendment to the cross-complaint named Miranda Towing.

On April 5, 2006, Miranda Towing and Mr. Brown answered the complaint and cross-complaint, and filed a cross-complaint for comparative fault, indemnity, and declaratory relief against Mr. Lee, Paul Black, and Universal Market Service.

Continue reading "Injured Sacramento Man Sues Towing Company After Car Accident, Part 3 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

SUMMARY OF THE FACTS

This matter stems from a three-car accident which occurred on September 21, 2004 at approximately 9:30 a.m. on the eastbound side of the 5 freeway in the city of Sacramento. At the time of the accident, Jack Brown was driving alone in the course and scope of his employment with Miranda Towing in a 1993 Chevy tow truck. Mr. Brown was traveling in the number five of six lanes eastbound on the 5 freeway.

Tony Lee was alone in his 2002 Ford Ranger and was in the number four lane on the eastbound side of the 5 freeway. Plaintiff Milton White was alone in his 1979 Porsche and was in the number three lane on the eastbound side of the 5 freeway.

Mr. Brown was traveling in the number five lane at approximately 60 miles per hour when a large tractor trailer started merging into his lane from the right. In order to avoid the merging tractor trailer, Mr. Brown activated his turn signal and moved his vehicle into the number four lane, which was occupied by Mr. Lee's Ford. Mr. Brown looked in his rear-view mirror and saw Mr. Lee's Ford prior to making his lane change and there was plenty of room for him to move safely. After Mr. Brown merged into the number four lane, he watched Mr. Lee's vehicle in his rear-view mirror.

Continue reading "Multi-Car Accident Injures Sacramento Drivers, Part 2 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

MIRANDA TOWING AND JACK BROWN’S TRIAL BRIEF

STATEMENT OF THE CASE

This lawsuit arises from a vehicular accident which occurred on September 21, 2004, at approximately 9:30 a.m. on the eastbound side of the 5 freeway in the city of Sacramento. The accident occurred when a Ford Ranger driven by defendant Tony Lee sideswiped a Porsche driven by plaintiff Milton White. Mr. Lee claims that he was cut off by a tow truck driven by Jack Brown which caused him to sideswipe plaintiff's Porsche, although the tow truck did not strike either vehicle. Plaintiff has sued Mr. Lee and his employer(s): Paul Black and Universal Market Service, Inc., Mr. Brown and his employer, Miranda Towing, as defendants.

Mr. Brown is not responsible for causing the accident. The evidence shows that the subject accident was solely caused by Mr. Lee. Just prior to the collision, Mr. Brown activated his turn signal and safely moved his vehicle from the number five lane into the number four lane. Mr. Brown looked in his rear-view mirror and saw Mr. Lee's Ford prior to making his lane change and there was plenty of room for him to move safely.

After Mr. Brown merged into the number four lane, he watched Mr. Lee's vehicle in his rear-view mirror. Mr. Lee continued to approach the rear of Mr. Brown's vehicle at a high rate of speed. As Mr. Lee reached the rear of Mr. Brown's vehicle, Mr. Lee applied his brakes suddenly and swerved into the number three lane, striking plaintiff's vehicle.

Continue reading "Sacramento Man Injured On The 5 Freeway In Car Accident, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

Past Medical Expenses:

Sacramento Fire Department $ 798.00

Children’s Hospital Sacramento $ 26,430.40

University Children’s Medical Group $ 1,724.07

Doug Walters, M.D. $ 238.00

Paul Smith, M.D. $ 1,960.00

Advanced Imaging $ 85.00

TOTAL PAST MEDICAL EXPENSES $ 31,235.47

Future Special Damages:

As can be seen from the attached Life Care plan, Amanda also has a myriad of future care needs. The cost of future medical care totals approximately 2.8 million dollars to 4 million dollars in an apartment living setting, and 8 million dollars to 9.1 million dollars in a supported living environment. Additionally, Amanda's future loss of earning capacity totals approximately $488,753 to $1.7 million dollars depending on her educational level.

Maggie Smith

Maggie was located in the front passenger seat, fully seat-belted when the collision occurred. As a result of this violent crash, she sustained a cervical fracture at C-2 and rupture of the intraspinous ligament, which required HALO immobilization. She also sustained injuries to her shoulders and knees. Maggie is currently 53 years of age and will require a lifetime of medical care involving medications, diagnostic studies and arthroscopies of both shoulders.

Continue reading "Girl Suffers Brain Injury In Sacramento Car Accident, Part 4 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

Past Medical Expenses:

Sacramento City Fire Department $ 692.00

Childrens Hospital Sacramento $ 114,946.00

A. Cooper, M.D. $ 72.76

Sacramento County CCS $ 1,643.25

Freddie Segal $ 686.79

University Children’s Medical Group $ 16,566.67

TOTAL PAST MEDICAL EXPENSES: $ 134,607.40

Future Special Damages:

As can be seen from the Life Care plan, Alexa has a myriad of future care needs. The costs of such future care total approximately 10.9 million dollars to 11.7 million dollars. Additionally, Alexa will suffer 1 million dollars to 1.3 million dollars in lost earning capacity depending on her educational level.

Amanda April

Amanda was sitting in the rear driver's side of the car. Amanda also suffered a traumatic brain injury and was diagnosed with a right transverse temporal skull fracture. She sustained loss of consciousness and amnesia. Amanda's mental status deteriorated upon arrival via helicopter to CHS, where she was intubated. She exhibited altered mental status while at the hospital. Amanda was also diagnosed with a right clavicular fracture and a right 7th rib fracture. She was noted to have right ear hearing loss and had blood in her right ear canal.

Amanda has been diagnosed with global learning disability, language communication delay, attention deficit disorder, gross and fine motor skills disability, chronic intermittent cephalgia, and multiple additional neurocognitive deficits. (See Part 4 of 4.)

Continue reading "Sacramento Family Facing Huge Bills Due To Car Accident, Part 3 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

Just before the collision, Black was traveling at a minimum of 58 miles per hour in a 35-miles-per- hour zone. By the time Martinez saw and appreciated the speed of the truck, she had already committed to her left turn. At the last moment, Black applied his brakes to no avail, and smashed into the rear passenger side quarter panel of the small Audi that Martinez was driving. The collision was violent, causing the Audi to spin counterclockwise. The truck drove up onto the sidewalk on the west side of Mission, knocking over both a fire hydrant and a palm tree.

Black was cited by for violating section 22350 of the Vehicle Code (speeding) and paid a fine.

Mr. Black was acting in the course and scope of his employment for his employer, Automotive Group, which is liable under the theory of respondent superior.

DAMAGES

Alexa Martinez
Alexa was sitting in the rear passenger position at the time of impact, and she suffered the full force of the direct hit by the defendants' truck. As a result, Alexa sustained extensive facial and skull fractures, lacerations, hematomas and contusions. She was diagnosed with subarachnoid, intraventricular and intracerebral hemorrhages and contusions, respiratory failure requiring intubation, and she was bleeding from her right ear. She was unconscious and nonresponsive at the scene.

Continue reading "Automobile Accident In Sacramento Injures Family, Part 2 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

PLAINTIFFS’ TRIAL BRIEF

INTRODUCTION

On August 20, 2005, Tammy Martinez was driving her mother, Maggie Smith, and her two nieces, 19-month-old Alexa Martinez, and 5-year-old Amanda April, northbound on Mission Boulevard (Mission) in Sacramento. The weather was clear and sunny at the time of the accident. As Martinez approached the intersection of Mission and Hollis, she intended to turn left to go westbound. Mission is a two-lane, north/south street in a business district. Hollis is a residential street with one lane in either direction. The intersection is controlled by standard 3-phase lights. There are no left-turn pockets, or left-turn arrows. On this day, numerous pedestrians were walking in this business district, and vehicle traffic was moderate. The posted speed limit at the intersection is 35 mph.

Defendant Ralph Black was 18 years of age and was employed by Automotive Group as a used car salesman. He was in the process of selling a used Ford F-150 pickup truck to a customer. Black's manager instructed him to take the pick-up and get it filled with gasoline while the sales contract was being drafted.

Continue reading "Sacramento Girl Suffers Brain Injury In Car Accident, Part 1 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

On July 6, 2006, plaintiff presented to Lee M. Messi, M.D. for a neurosurgical consultation. Dr. Messi wrote a report. In the report, it is noted that plaintiff stated he was involved in an accident and that he had a sore body, but his neck was the main symptom of pain. Dr. Messi reviewed plaintiff's MRI of his cervical spine and stated that the MRI shows "evidence for significant disc abnormalities at both C4-5 and C5-6." At the C5-6 there is a disc osteophyte complex and narrowing of the AP diameter of the spinal canal to 8mm. In addition, there is some right side neuroforaminal narrowing and possible impingement of the right C6 nerve root. At the C4-5 there is a central disc protrusion narrowing the spinal canal approximately in 9mm. In general the space diameter of the canal appears to be quite compromised with an average diameter of 9mm even in the areas where there is no disc abnormalities.

Dr. Messi recommended cervical epidural blocks and if this approach did not work, plaintiff may be considered as a candidate for a two level anterior cervical diskectomy and fusion at C4-5 and C5-6.

SPECIAL DAMAGES

Plaintiff seeks medical expenses, wage loss, and general damages.

1. Past Medical Expenses:

Provider Dates Amount Charged Amount Reduced Hanif Number

Kate Brown, D.C. Feb 8, 2006 $514.13 $0.00 $514.13

MRI Feb 21, 2006 $1,695 $0.00 $1,695

Lee Messi, M.D. July 6, 2006 $750.00 $0.00 $750.00

TOTAL $2,959.13 $0.00 $2,959.13

Continue reading "Sacramento Woman Challenges Plaintiff's Auto Injury Claim, Part 3 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

On February 9, 2006, plaintiff returned to Dr. Brown with pain in his right arm and hand along with neck pain associated with the accident. Dr. Brown provided ultrasound treatment and myofascial release.

On February 14, 2006, plaintiff returned to Dr. Brown with pain in his neck which radiated to his right arm and hand. Dr. Brown referred plaintiff for an MRI at Advanced MRI of Sacramento.

On February 21, 2006, plaintiff had an MRI of his cervical spine at Sacramento Imaging Center which was read by Kenneth Dorham, M.D., who's impression was:

1. Mild to moderate anterior extraduarl impressions at the C4-5 and C5-6 levels as described. At the C4-5 level this is due to a small central disc protrusion, and at the C5-6 level, this appears to be due to a moderate broad based disc osteophyte.

2. Right sided neural foraminal narrowing at the C5-6 level due to bony hypertrophic changes.

3. The cord has a generally flattened appearance throughout the cervical spine and the AP diameter of the canal even where the disc appear normal is less than 9mm. This is likely developmental in nature.

On March 2, 2006, plaintiff returned to Dr. Brown with neck pain radiating into his right arm. Chiropractic adjustments were administered.

On March 16, 2006 plaintiff returned to Dr. Brown with ongoing pain in his neck.

Plaintiff treated with Dr. Brown from February 8, 2006 to March 16, 2006 for a total of 5 visits.

Continue reading "Car Accident In Sacramento Leaves Both Drivers Injured, Part 2 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Mandatory Settlement Conference Statement of Defendant Dina White

STATEMENT OF FACTS

This case arises out of a red light/green light dispute that occurred at the intersection of University Avenue and Green Street in Sacramento, CA, on January 22, 2006. Defendant, Dina White, was traveling in a 2002 Audi Quattro and came to a stop at University Avenue to make a left hand turn. When the left hand turn signal changed to green (an arrow), defendant proceeded to turn left. Plaintiff, Michael Owen, was traveling in a 1998 BMW 528i, eastbound on University Avenue and drove through the intersection on a red light. The passenger side fender and hood of defendant's Audi came into contact with driver's side front fender of plaintiff's BMW.

Besides these two drivers, there are no witnesses to this accident. There is no police report in connection with this case. Both vehicles were declared a total loss as a result of this accident.

LIABILITY

Plaintiff is at fault for causing this accident by illegally running a red light.

INJURIES AND TREATMENT

On February 8, 2006, plaintiff presented to Kate Brown, D.C. to establish care. According to Dr. Brown's initial exam report, plaintiff stated that he was involved in the accident when a Audi ran a red light and hit his automobile.

Continue reading "Woman From Sacramento Involved In Car Accident, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Although Mr. Owen acknowledges the need for surgery, his personal obligations due to his wife's medical condition preclude him from pursuing a surgical option at this time.

In the absence of surgery, Mr. Owen is left with constant pain, numbness in his hands and fingers, and reduced range of cervical motion. This has not only reduced his ability to drive, but also his enjoyment of it. Where before the accident, he used to walk five miles each day, now, he can do a mile at most, with frequent breaks, and the attendant pain. Social activities as simple as hosting a barbecue for family and friends is now out of the question.

MEDICAL SPECIAL DAMAGES

Key Health (MRI) $1,695.00

Dr. Kate Brown D.C. $514.13

Dr. Messi M.D. $750.00

MEDICAL SPECIALS TO DATE $2,959.13

FUTURE MEDICAL SPECIALS

Two Level Cervical Fusion $80,000.00

WAGE LOSS

At the time of the accident Mr. Owen was self-employed by World Limousine Service as a driver. In that position, Mr. Owen earned $50.00 per hour, or $72,000.00 per year. As a result of the injuries which he sustained in the subject motor vehicle accident, Ms. Owen missed the eight weeks immediately after the accident. This wage loss alone is $12,000.00.

Continue reading "Surgery Needed By Sacramento Man Injured In Car Accident, Part 5 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

An MRI was taken of Mr. Owen's cervical spine on February 21, 2006, at the Sacramento Imaging Center. This scan was interpreted as revealing:

1. Mild to moderate anterior extradural impressions at the C4-5 and C5-6 levels. At the C4-5 level this is due to a small central disc protrusion and at the C5-6 level, it appears due to a moderate broad based disc osteophyte;

2. Right sided foramina 1 narrowing at the C5-6 level due to bony hypertrophic changes;

3. The cord has a generally flattened appearance throughout the cervical spine and the AP diameter of the canal, even where the discs appear normal, is less than 9 millimeters.

Dr. Brown immediately referred Mr. Owen to Dr. Lee Messi for neuro-surgical consultation. Dr. Messi summarized his findings in a letter of July 6, 2006. Dr. Messi noted that Mr. Owen was then experiencing posterior neck pain with radiation into his right upper extremity. On examination, Dr. Messi noted weakness in Mr. Owen's biceps and triceps muscles upon dorsiflexion of the right hand, with decreased bicipital reflex on the right when compared to the left. Dr. Messi noted that Mr. Owen's cervical range of motion was restricted to 60% of normal. Dr. Messi reviewed the MRI scan and noted significant disc abnormalities at both C4-5 and C5-6. Dr. Messi concluded that Mr. Owen's symptoms were consistent with radiation from a C5-6 disc abnormality.

Continue reading "Sacramento Man Suffers Back Injury During Car Accident, Part 4 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

At deposition, Defendant also remembered telling the police what lane she was in. However, Mr. Owen distinctly remembers hearing Defendant tell the investigating officer at the scene that she had turned left "from the second lane," which would be a lane for through traffic. Mr. Owen remembers the officer repeating the question two or three times, and getting the same response each time.

Defendant has the burden of proof with respect to her allegations and her Affirmative Defenses, and Defendant's recall of events during her deposition make it impossible for her to prove: 1) that Plaintiff did anything whatsoever to cause the accident and/or 2) that she was proceeding cautiously in making her ill fated attempt at a left turn across oncoming traffic.

The accident was clearly caused by the negligence of Ms. White in either of two ways:

1. She jumped the red arrow for the left turn and attempted to squeeze between the gap in oncoming traffic in front of Mr. Owen.

2. She made the turn from the lane next to the left turn lane, having the green and seeing that same gap in traffic.

Ms. White therefore either ran the red arrow or made an illegal left turn. In either case she failed to lawfully yield to oncoming traffic in the intersection. Plaintiff has the burden of proving that the accident was caused by Defendant's failure to exercise reasonable and due care while making a left turn. Failing to make certain that the intersection was clear before turning left it was the negligence of Defendant in either version.

Continue reading "Two-Vehicle Automobile Accident In Sacramento, Part 3 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

California Vehicle Code §21801 states in relevant part:

(a) The driver of a vehicle intending to turn to the left or to complete a U-turn upon a highway, or to turn left into public or private property, or an alley, shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn or U-turn can be made with reasonable safety.

Even in the unlikely event that the traffic signal for Plaintiff had changed from green to yellow and then to red after Mr. Owen had entered the intersection, Defendant would still be entirely responsible for the collision and injuries. Vehicle Code §21451 states in relevant part:

(a) Any driver, including one turning, shall yield the right-of-way to other traffic and to pedestrians lawfully within the intersection or an adjacent crosswalk.

The finder of fact is likely to conclude that Mr. Owen entered the intersection lawfully, and at a reasonable speed. And that Defendant, either turning from a non-turning lane or from the left turn pocket, saw a gap in traffic created by Mr. Owen maintaining a reasonable following distance behind the vehicle in front of him, made an ill fated attempt to squeeze through this gap.

Continue reading "Automobile Collision In Sacramento Leaves Man Injured, Part 2 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Mandatory Settlement Conference Statement of Plaintiff Michael Owen

FACTS
This matter arises from negligence of Defendant Dina White in causing an automobile accident on January 22, 2006, at the intersection of University Avenue and Green Street in the City and County of Sacramento. Plaintiff Michael Owen was the restrained driver of a 1998 B.M.W. 528i proceeding eastbound on University Avenue. He was in the process of crossing the intersection of Green on the green light. He was free of any back and neck pain.

Defendant Dina White had been proceeding westbound on University Avenue in her 2004 Audi Quattro, and made a sudden left turn, directly into the path of Mr. Owen's vehicle. Ms. White said that she was proceeding slowly. Mr. Owen said that she was flying in such a manner that Mr. Owen was unable to avoid the inevitable impact.

Mr. Owen, now 58, is a former commercial airline pilot, and is now a limousine driver. In this accident he sustained neck and back injuries that can only be alleviated by surgery. Mr. Owen has also lost income because the constant pain from the accident injury makes it impossible to drive as many hours as he did before the accident, or to lift heavy luggage in and out of the vehicle.

Continue reading "Sacramento Man Seriously Injured In Car Accident, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

WAGE LOSS CLAIM
Plaintiff was employed as a sales associate for Macy's at the time the car accident occurred. She was also a student at Community College.

Plaintiff testified that her income at Macy's decreased after the accident because she worked fewer hours and could not remain on her feet as long as she used to before the accident. She would have to take breaks because of her back pain.

Plaintiff had started working for Macy's in 2004. According to a Mortgage Verification Form provided by Macy's, the plaintiff earned the following during the four years she was employed at Macy's:

Year Amount

2004 $ 4,117.51

2005 $ 23,221.43

2005 $ 20,557.65

2007 $ 2,707.19

Plaintiff testified that that she does not know how many days she actually may have missed from Macy's.

Subpoenas of Macy's records pertaining to the plaintiff have not revealed any specific attendance records.

Plaintiff testified that she stopped working for Macy's and resigned from her position because she felt she could no longer do the job because of her injuries.

Continue reading "Female Sacramento College Student Injured In Motor Vehicle Collision, Part 6 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

On November 5, 2007, plaintiff returned to Dr. Wong. She reported she was doing yoga and stretches and had a personal trainer. She had stopped chiropractic treatment. She had never tried Pilates. She reported her symptoms would increase with stress. Exam revealed her scoliosis. She was tender to palpation in the lumbosacral area. Assessment was chronic low back pain with scoliosis and mild degenerative disc disease. She was advised to decrease stress. Core exercises were given.

On January 17, 2008, she was seen by Dr. Wong. She reported she still had back pain. She apparently was not doing chiropractic. She had done back exercises for a time. Assessment was lumbosacral strain/low back pain which was chronic.

Given the nature and the impact involved in this collision and also given the absolute lack of any medical treatment between February 9, 2005 and June 8, 2005, defendants contend that the only reasonable medical treatment related to this very minor auto accident would be the following:

Provider Dates Billed Paid

Doctors Valley Medical Group 2/9/06 1 treatment $ 95.00

Continue reading "Car Accident Victim From Sacramento Suffers Neck Injury, Part 5 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

On September 19, 2007, she returned to Dr. Wong. It was now over one year post-accident. She was still having chronic back issues. She was seeing a chiropractor but there was no relief. She was having pain in her legs and it felt like she walked with a limp. She would get tired easily. She was going to school full-time. She appeared to have trigger points in her neck and lumbosacral area. Assessment was chronic lumbosacral strain/pain with stress at home and she was referred for an MRI scan.

On September 25, 2007, plaintiff received an MRI scan of her lumbar spine. Impression was mild multilevel lumbar spondylosis. She had a broadbased central disc protrusion of 3mm at L5-S1. She had a disc bulge of 2-3 mm at L4-5 in combination with degenerative changes and a lateral disc bulge of 2 mm at L3-4. Finally, she had mild dextroscoliosis of the lumbar spine.

On October 11, 2007, plaintiff received an orthopedic evaluation from James White, M.D. of the California Spine Institute. She reported the car accident. She reported driving a BMW 325c and going over a speed bump when she was rear-ended by a Toyota 4-wheel drive traveling 25-30 miles per hour (this is plainly an exaggeration).

Continue reading "Sacramento Woman Suffers Back Injuries In Car Accident, Part 4 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

Plaintiff next sought physical therapy treatment from NeuroActivity Rehab of Roseville. She received an initial evaluation on June 14, 2005 and continued to receive treatment through September 15, 2005, for a total of five treatment sessions.

A June 14, 2005, NeuroActivity Patient Intake Form indicates diagnosis was scoliosis and DOI: 2 weeks.

The NeuroActivity treatment notes document that between the initial evaluation of 6/14/06 and final treatment note of 9/27/06, there were six "no shows" and one cancellation by the plaintiff.

The NeuroActivity June 14, 2005 evaluation indicates diagnosis was scoliosis/lumbosacral strain. Plaintiff reported the 2/7/06 motor vehicle accident. She said three days later she felt low back pain which had gone away and then came back one month later. She had not had any x-rays. It was noted she worked in customer service at Macy's. She would have pain while lying on her back. She was to start next week at Community. Assessment was lumbar-hip dysfunction with tight muscles.

Continue reading "Sacramento Resident Rear-Ended In Auto Accident, Part 3 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

The Injury Claim

Plaintiff testified that her neck and mid-back began hurting the day after the automobile accident. Plaintiff initially sought treatment from her regular medical facility, the Doctors Medical Group, 2 days post-accident on February 9, 2005. She was seen by Sun Bhandiopathi, M.D. She reported that she had been rear-ended in a parking lot 2 days ago. She was having neck pain and back pain. Her pain was a 5 out of 10. Her cervical spine had tenderness and spasm and her lumbar spine had tenderness and some spasm with limited range of motion. Assessment was cervical and lumbar strain, mild, due to motor vehicle accident and she was prescribed Flexeril and she was advised to recheck back in one week.

Plaintiff then did not seek any other additional medical treatment for any alleged complaints from the accident until June 8, 2005, some 4 months post accident, when she saw Bobbi Chen, M.D. at the Doctors Valley Medical Group. She reported this was for followup of the motor vehicle accident of February 2005 and plaintiff reported she still had back pain. Plaintiff reported she was driving her car over a speed bump using a stick shift and she had slowed down and got rear-ended by a truck. She was wearing her seatbelt.

Continue reading "College Student From Sacramento In Car Accident, Part 2 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

DEFENDANTS’ MANDATORY SETTLEMENT CONFERENCE STATEMENT

PARTIES
Plaintiff Alexa Brown is represented by counsel.
Defendants Randy Greene is represented by counsel.

INTRODUCTION
This matter arises out of a claim by plaintiff Alexa Brown (age 21) that she was rear-ended by a vehicle operated by defendant Randy Greene in the Community College parking lot in Sacramento, California, on February 7, 2005.

Defendant contends that the impact was minor and no injuries could possibly have occurred. Neither a traffic collision report nor college security report were completed regarding the accident.

FACTUAL BACKGROUND
The Accident
Plaintiff Alexa Brown (age 20 at the time of the accident) was driving a 2001 BMW 325i.
Defendant Randy Greene (age 21 at the time of the accident) was driving at 2001 Toyota Prerunner.

Continue reading "Sacramento Student Injured In Auto Accident, Part 1 of 6" »

The recent troubles facing Toyota automobiles in North America affect not only the owners of its vehicles, but also those of us sharing the roadways with the defective and potentially dangerous cars.

Toyota dealers resumed selling vehicles Thursday that were pulled from the sales lot to address sudden-acceleration problems as the automaker said lost sales and a series of related recalls would cost $2 billion.

That recall price tag would be one of the most expensive in automotive history, said auto information company Edmunds. com.

Also, the California state assembly reacted to Toyota Motor Corp.'s safety recalls and its decision to shutter the state's last auto manufacturing plant by voting Thursday to stop buying Toyota cars for use by lawmakers when they're in Sacramento. The Assembly Rules Committee voted to resume a 2003 policy of buying only U.S.-made cars for its 130-vehicle fleet.

Toyota stopped sales of eight models -- including its top-selling Camry and Corolla -- on Jan. 26, saying the gas pedals could get stuck and cause runaway acceleration. The automaker also shut down production of the vehicles for a week while it examined how to fix the problem, which it attributed to wear on the pedal system.

"We now have more than enough parts at dealers to take care of the flow of repairs. Dealers may sell a new car if the repair is made," said Mike Michels, a Toyota spokesman. "There is no single point in time when the stop sale would be lifted. It will be car by car."

Continue reading "Toyota Recall And Accidents Impact Sacramento Drivers" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)

Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer v. Cooper, (1965) 233 Cal. App. 2d 750, 754, a case cited with approval in Kennemur, the court stated as follows concerning the scope of required deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for. In this case, Dr. Brown and Dr. Smith testified in their depositions as to their observations and opinions and they should not be limited by defense counsel's failure to conduct a more thorough deposition, as is common in a personal injury case.

DEFENDANTS' MOTION IS PRECISELY THE TYPE CRITICIZED BY THE COURT IN KELLY VS. NEW WEST FEDERAL SAVINGS

An important recent case on in limine motions, Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, addressed itself to precisely this type of motion and expressly found that such motions are not proper. The Court stated as follows at pages 670-673:

[M]any of the motions filed by Amtech were not properly the subject of motions in limine, were not adequately presented, or sought rulings which would merely be declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses. For example: MIL No.7, previously referred to, sought to limit the opinions of plaintiffs' experts to those rendered at deposition and in written reports. Again, there was no supporting evidence to suggest what opinions had been rendered at the depositions, leaving the court and the parties to guess what opinions during trial may be included within the scope of the ruling.

Continue reading "Car Accident Victim From Sacramento Catastrophically Injured, Part 4 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)

THE AUTHORITIES CITED BY THE DEFENSE ARE NOT APPLICABLE TO THE FACTS OF THIS CASE

Defendants' reliance on Kennemur v. State of California, (1983) 133 Cal.App.3d 907 is misplaced. Even a cursory review reveals the case to be inapposite.

In Kennemur, the plaintiff's expert, Dr. Mitchell, was deposed on three separate occasions over a six-day period by the defendant The witness was specifically asked whether he was going to testify on accident reconstruction. He specifically stated that he was not and would leave that to a different expert He said that he was limiting his testimony to the stability of the automobile involved in the accident. (Id. at 912.) At the second session of his deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

The issue before the Court was not whether Dr. Mitchell could testify to areas into which opposing counsel had failed to delve but rather whether he could testify on accident reconstruction issues abut which he was specifically asked and had stated he had no opinion.

Continue reading "Sacramento Auto Accident Victim Battles Experts, Part 3 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)

In addition, Defendants' blanket and vague Motion in Limine is inappropriate. They have not set forth or highlighted any specific testimony they seek to exclude. As set forth in Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, Motions in Limine which are declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses are inappropriate. Id. at 670.

Further, the defendants have inaccurately claimed that they have not been provided with Dr. Smith's raw data. This is simply not the case; Plaintiff's counsel has confirmed that Defendants' expert, Dr. White, has been in receipt of said raw data since October 19, 2005. Consequently, as set forth herein, Defendants' Motion is inappropriate and should be denied.

THE DEFENSE INTERPRETATION OF THE LAW WOULD REWARD DEFENDANTS FOR TAKING INSUFFICIENTLY THOROUGH DEPOSITIONS

Defendants are asking the Court to preclude an expert from saying anything that he has not already said in his deposition. This is clearly contrary to the law and would create a possible loophole in the expert discovery statute. A defendant would simply have to ask very few questions and thereby block the expert from testifying about anything other than what he was asked. Surely the Defendants cannot possibly be asking the Court to make such a ruling in such a horrific personal injury case.

Continue reading "Sacramento Man Suffers Brain Injury In Car Accident, Part 2 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/auto accident case and its proceedings.)

This Opposition will be based upon this Notice, the attached Memorandum of Points and Authorities, any supplemental briefs submitted on the issues, as well as on the pleadings, papers, files, and records in this matter, and upon such other further documentary and oral evidence as may be presented at the hearing on this matter.

(1) Plaintiffs' experts are allowed to respond to the opinions given by Defendants' experts, especially where the Defendants' experts were deposed after the Plaintiffs' experts; and

(2) Counsel should be allowed the right to present all relevant evidence which will assist the jury. There is no basis for a restriction based on an abstract in limine ruling.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff opposes the Motion in Limine #1 submitted by Defendants to the extent that it seeks to exclude testimony of Plaintiffs' experts that either the Defendant did not elicit from the expert at the time of deposition, or constitutes comment or opinion regarding the testimony of opposing experts.

California Code of Civil Procedure section 2034(j) governs the exclusion of expert testimony. A Court may exclude testimony of an expert only if a party did not list the witness as an expert, did not submit an expert witness Declaration that complied with the expert information disclosure statute, did not produce the expert's reports, or did not make the expert available for deposition. California Code of Civil Procedure § 2034(j); Bonds v. Roy (1999) 20 Cal.4th 140.

Continue reading "Sacramento Man In Horrific Car Accident, Part 1 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Thus, the court determined it was proper to place the entire medical charges before the jury, as better evidence of the degree of harm, and effect a post-verdict reduction of damages to account for the difference between the amounts paid by private health insurance and the amounts billed by the health care provider.

Nishihama is not dispositive. To the extent that Olszewski limited Hanif's application to the Medi-Cal context, it implicitly overruled Nishihama's extension of Hanif to the realm of private insurance. Moreover, the Supreme Court reserved the issue in connection with private insurers. In Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595, 611, fn. 16, the Court explicitly declined to reach the question of whether Olszewski and Hanif "apply outside the Medicaid context and limit a patient's tort recovery for medical expenses to the amount actually paid by the patient notwithstanding the collateral source rule."

Regardless of whether this Court agrees with Nishihama, it does not alter the fact that under the collateral source rule the tortfeasor should be precluded from reducing the injured plaintiff's recovery because his or her insurer was able to contract with the health care provider to treat Plaintiff below its normal rates.

Continue reading "Jury's Damage Award In Sacramento Car Accident Case Subject To Court's Scrutiny, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

(More re Medi-Cal payment ruling challenge.)

However, in Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 826-817, the Supreme Court expressed disapproval of restricting a tort victim's medical specials to the amounts paid by Medi-Cal. The Court recognized that the tortfeasor escapes liability for the full amount of the medical expenses he or she wrongly caused. Such a result benefits the tortfeasor at the expense of the blameless provider and harms society as a whole. The Court urged the Legislature to remedy this inequity. Id. at 827. These policy reasons favor following the collateral source rule over the appellate courts' disregard of that rule.

In Nishihama, supra, 93 Cal.App.4th 298, another appellate court extended the Hanif limitation beyond Medi-Cal to private insurance without distinguishing the collateral source rule. In Nishihama, the injured plaintiff'sought recovery of medical expenses which had been paid by her employer-obtained medical insurer (Blue Cross). That insurer in turn had negotiated for reduced rates (i.e. rates below what is ordinarily charged) at the facility where the plaintiff was treated. The jury awarded the plaintiff damages based on what the facility ordinarily charged. In the context of discussing whether the plaintiff could recover damages based on the hospital's ordinary rates, the court first observed:

A plaintiff in a personal injury action is entitled to recover from the defendant tortfeasor, the reasonable value of medical services rendered to the plaintiff, including the amount paid by a collateral source, such as an insurer. As medical expenses fall into the category of economic damages, they represent actual pecuniary loss caused by the defendant's wrong. Id. at 306.

Continue reading "Sacramento Car Accident Victim Fights Reduced Damage Award, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

COURTS DISCUSSING LIEN RIGHTS HAVE IMPROPERLY ERODED THE COLLATERAL SOURCE RULE

While it appears uniform that under the collateral source rule a tortfeasor is not entitled to introduce evidence that the injured plaintiff has insurance for purposes of proving that the plaintiff has not been injured to the extent an insurer has already paid for those injuries, some appellate courts have either directly or indirectly ruled that the tortfeasor is able to introduce evidence of the amount the plaintiff's insurer has paid in order to cap the amount of the plaintiff's recovery. These courts have reasoned that if the insurer has a separate agreement with the health care provider to furnish medical care at a rate below what is normally charged, then that reduced rate becomes the plaintiff's true damages for purposes of fixing his or her recovery.

The first reported case to take this path was Hanif, supra, 200 Cal.App.3d 1635. There, in the context of an action where the injured plaintiff's medical care was paid for by Medi-Cal, the court initially explained:

Preliminarily, we note there is no question here that Medi-Cal's payment for all injury-related medical care and services does not preclude plaintiff's recovery from defendant, as special damages, of the amount paid. This follows from the collateral source rule.
Id. at 640.

However, without any further reference to the collateral source doctrine, the court proceeded to reason:

Continue reading "Sacramento Auto Accident Victim Challenges Medi-Cal Payment Ruling, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

California's Legislature has recognized the collateral source rule by carving very limited exceptions to that rule which are meaningful only if the rule itself exists. For example, Government Code § 985 sets forth a detailed procedure for when a public entity provides collateral services to an injured plaintiff. That section is applicable only where the public entity is a defendant. It allows the court, post-verdict, to consider giving the public entity credit for the collateral source payments, after taking evidence concerning the nature of the benefits and plaintiff's reimbursements obligations.

The statute makes clear that "[a]ny collateral source payment paid or owed to or on behalf of a plaintiff'shall be inadmissible in any action for personal injuries or wrongful death where a public entity is a defendant." The public entity can seek recovery of collateral benefits following a verdict which includes "damages for which payment from a collateral source listed below has already been paid or is obligated to be paid for services or benefits that were provided prior to the commencement of trial..." Id.

Likewise, the Legislature also created a statutory exception to the rule for medical malpractice defendants when it enacted it as an aspect of MICRA (Civil Code § 3333.1, et. seq.). As with the public entity exception, the Legislature crafted a compromise procedure for the evidentiary handling of the exception, and accompanied the change with fundamental changes in the structure of attorney's fees and general damages in medical malpractice cases. Specifically, the MICRA statutes provide the plaintiff an opportunity to introduce a host of relevant and admissible evidence as to the reasonable value of the medical services provided, including not simply the billed charges, but also evidence of the premiums paid to secure health insurance benefits and other evidence of the reasonable value of those services.

Continue reading "Huge Wage Loss At Center Of Sacramento Auto Accident Case, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

THE COLLATERAL SOURCE RULE IS UNQUESTIONABLY THE CONTROLLING LAW IN CALIFORNIA

The collateral source doctrine has been the rule in California since at least 1925. Clark v. Burns Hamman Baths (1925) 71 Cal.App. 571, 575. The doctrine "expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities." Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 10. The California Supreme Court explained the rationale behind the rule: if the tortfeasor were allowed to mitigate damages with payments from plaintiff's insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. The defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance. Id. at 10.

The Court elaborated on the related rule prohibiting the introduction of collateral source evidence, citing to Hrnjak, supra, 4 Cal.3d 725. In Hrnjak, the trial court allowed the defendant in a personal injury action to introduce evidence that the plaintiff had received insurance benefits, asserting the evidence was relevant to the plaintiff's motives in seeking medical help and his credibility as a witness. Id. at p. 728. The Supreme Court held that this ruling was an abuse of discretion under Evidence Code § 352 because [e]ven with cautionary instructions, there is substantial danger that the jurors will take the evidence into account in assessing the damages to be awarded to an injured plaintiff.

Continue reading "Sacramento Man Challenges Damages Ruling In Car Accident Trial, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

RECENT CASE AUTHORITY CONFIRMS THAT THE TOTAL AMOUNT OF A PLAINTIFF'S MEDICAL BILLS ARE ADMISSIBLE

In Olsen, supra, WL 2486789, plaintiff was injured by defendant's motorized wheelchair and incurred over $62,000 in medical expenses. The court granted plaintiff's motion to present the full amount that her providers billed her for treatment and denied defendant's motion to introduce the amount actually paid. After trial, the court reduced the jury's verdict to the amount actually paid on plaintiff's behalf.

The appellate court held that this reduction was in error because there was insufficient evidence of what amount was paid, "written off" and remained to be owed. However, the court further held that the full amount of plaintiff's medical charges was properly presented to the jury, citing Nishihama's explanation that the usual rates billed was a stronger indicator of the extent of a plaintiff's injuries than the specially negotiated rates obtained by an insurance company.

In Greer, supra, 141 Cal.App.4th at 1152-1153, the plaintiff was seriously injured in an automobile accident. His medical bills were $216,000. Plaintiff's employer paid plaintiff's health care providers $132,000, satisfying plaintiff's entire medical tab. Prior to trial, defendant moved in limine to exclude evidence of medical expenses that exceeded the amount paid on plaintiff's behalf to his medical providers.

Continue reading "Court Reduced Sacramento Man's Car Accident Award After Trial, Part 3 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Second, Nishihama violates the California Supreme Court decisions of Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729, 734 and Helfend v. So. Calif. Rapid Transit Dist. (1970) 2 Cal.3d 1, 4 which have unequivocally confirmed the application of the collateral source rule in California. To rule otherwise would ignore the historical importance of the collateral source doctrine and the principle of stare decisis. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ( Under doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction; decisions of Supreme Court are binding upon and must be followed by all California state courts... Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court .).

Third, even defendant's expert Lee Brown testified that although he intends to testify that the reasonableness of the bills is merely the adjusted amount accepted by the facilities, he has no way of knowing for sure what that amount is. Consequently, there is no basis to limit the introduction of the total amount billed to the Plaintiff.

Fourth, the prejudicial effect of introducing reduced medical bills to the jury would undermine Plaintiff's claim for personal injury damages. If, for example, the jury is informed that Plaintiff's medical bills are substantially less than the $278,000 which were charged by his health care providers, that fact may diminish Plaintiff's general damages claim in the jury's eyes and reduce his general damages award.

Continue reading "Auto Accident Leaves Sacramento Man With Huge Damages, Part 2 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

PLAINTIFF’S TRIAL BRIEF REGARDING INTRODUCTION OF HIS MEDICAL BILLS
MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY OF FACTS AND ARGUMENT

This is an admitted liability case.

Plaintiff Billy White’s vehicle was rear-ended at high speed by defendant Thomas Smith’s vehicle as Mr. White was stopped at a lighted intersection in Sacramento. Plaintiff' suffered a serious low back disc herniation at L5-S1, which eventually required a fusion surgery. He may need future revision procedures. Plaintiff’s medical bills exceed $278,000. His loss of earnings exceeds $600,000-$750,000.

Defendants want to restrict evidence of Plaintiff's medical specials at trial to the contract rate the healthcare providers accepted from Plaintiff's health insurance carrier pursuant to Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298.

The motion should be denied for the following reasons:

First, recent judicial decisions affirmed the right of a plaintiff to introduce the full amount of her medical bills notwithstanding that they exceeded the amount paid by insurers to plaintiff's medical providers. In Olsen v. Reid, 2008 WL 2486789, the court of appeal "squarely rejected" defendant's argument that the jury should be barred from hearing evidence of the full measure of plaintiff's medical damages. Similarly, in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157, the court permitted Plaintiff to present the full amount that was billed to him, subject only to a possible post-verdict reduction.

Continue reading "Sacramento Man Sues To Recover Damages After Auto Accident, Part 1 of 8" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

These above cases dramatically demonstrate the principle that--much as every case is of course different and must be independently decided--awards of non-ecomonic damages in the range of $5.4 million (roughly adjusted for inflation) are limited to truly catastrophic injuries. And while Mr. Ward presented evidence at trial of back, neck, and knee injuries that cause significant pain and require surgery, Mr. Ward has produced no evidence of an injury which leaves him paralyzed or otherwise deprived of control over his life as an individual. In short, his injuries from the automobile acident are not catastrophic, and the jury's award of damages as if they were is not reasonable. Damages must be reduced substantially by this Court, or a new trial must be ordered. The same is true for plaintiff’s wife's award.

The Jury's $1.620 Million Loss of Consortium Damages Award to Ms. Ward Is Excessive

A wife's loss of consortium is comprised of her own physical, psychological and emotional pain and anguish which results when her husband is negligently injured to the extent that he is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life. [Citation.] While triggered by the spouse's injury, a loss of consortium claim is separate and distinct, and not merely derivative or collateral to the spouse's cause of action. (Gapusan v. Jay (1998) 66 Cal.App.4th 734, 742.)

The jury awarded a total of $1,620,000 to Ms. Ward for past and future loss of consortium. This amount is exactly 30% of the $5.4 million in non-economic damages awarded to Mr. Ward.

The loss of consortium award to Ms. Ward raises three immediate concerns. First, the jury clearly disregarded the independent nature of Ms. Ward's claim, by simply giving her a percentage of what it gave to Mr. Ward for his pain and suffering. Second, the determination of Ms. Ward's loss of consortium claim by way of a percentage of an entirely independent claim belonging to another person constitutes a clear violation of the rule against using mathematical formulas to arrive at a figure for damages. (See above.)

Continue reading "Sacramento Jury Awards Car Accident Victim's Wife Huge Sum For Loss Of Consortium, Part 14 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

Further, non-economic damages awards that are similar in size to Mr. Ward's $5.4 million award are found only in cases involving injuries which exceed--and in some cases far exceed--his in terms of their severity. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 520-523 [$8.4 million in non-economic damages awarded to plaintiff who became a paraplegic as a result of truck accident];

Mendoza v. Car Club, Inc. (2000) 81 Cal.App.4th 287, 292-293, 300 [court upholds jury award of $1 million in non-economic damages against manufacturer of golf cart whose parking brake malfunctioned, causing plaintiff to suffer a broken neck]; Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1232-1233 [court confirms jury award of $2.99 million in non-economic damages to plaintiff who suffered permanent paralysis from the waist down and chronic radiating pain as a result of being shot in the back]; Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, [court upholds $6 million in non-economic damages to 3 year-old for injuries suffered in auto accident rendering her paraplegic and severely brain damaged, but with normal life expectancy];

Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 641-642, 653-655 [22-year old plaintiff was hit in the head and back with a 630-pound pipe, rendering him triplegic, with loss of all movement, sexual function, bladder and bowel control, and in constant pain, but with normal life expectancy; jury awards total economic and non-economic damages of $4,235,996, which the reviewing court upholds]; Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 237, 241, 244 [court upholds jury's award of $1.6 million in non-economic damages for head injury to young boy resulting in irreversible total paralysis and inability to speak].) (See Part 14 of 14.)

Continue reading "Lifetime Injuries For Sacramento Automobile Accident Victim, Part 13 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

Further, non-economic damages awards that are similar in size to Mr. Ward's $5.4 million award are found only in cases involving injuries which exceed--and in some cases far exceed--his in terms of their severity. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 520-523 [$8.4 million in non-economic damages awarded to plaintiff who became a paraplegic as a result of truck accident];

Mendoza v. Car Club, Inc. (2000) 81 Cal.App.4th 287, 292-293, 300 [court upholds jury award of $1 million in non-economic damages against manufacturer of golf cart whose parking brake malfunctioned, causing plaintiff to suffer a broken neck]; Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1232-1233 [court confirms jury award of $2.99 million in non-economic damages to plaintiff who suffered permanent paralysis from the waist down and chronic radiating pain as a result of being shot in the back]; Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, [court upholds $6 million in non-economic damages to 3 year-old for injuries suffered in auto accident rendering her paraplegic and severely brain damaged, but with normal life expectancy];

Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 641-642, 653-655 [22-year old plaintiff was hit in the head and back with a 630-pound pipe, rendering him triplegic, with loss of all movement, sexual function, bladder and bowel control, and in constant pain, but with normal life expectancy; jury awards total economic and non-economic damages of $4,235,996, which the reviewing court upholds]; Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 237, 241, 244 [court upholds jury's award of $1.6 million in non-economic damages for head injury to young boy resulting in irreversible total paralysis and inability to speak].) (See Part 13 of 14.)

Continue reading "Sacramento Jury Awards Huge Non-Economic Damages To Accident Victim, Part 12 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

Damages awards upheld in other cases involving similar injuries further illustrate the true departure from reality reflected by the award to Mr. Ward. (See Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1074-1077 [in upholding $150,000 in non-economic damages for slip-and-fall injury to legs and lower back of 55-year old woman, trial court remarked that the award was generous, where plaintiff suffered from ongoing, chronic, permanent pain from myofascial pain syndrome, which limited her mobility, caused her to be physically weak, and prevented her from working at her job]; Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1546-1547 [where plaintiff's arm was severed by fan, resulting in permanent loss of use of dominant hand after reattachment, chronic and severe pain, and inability to work, jury awarded non-economic damages of $2.5 million];

Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 34-38 [where plaintiff suffered "massive crush injury" to his left chest and shoulder from being trapped between a 65,000-pund truck and its trailer, causing massive blood loss, kidney failure, crushing of shoulder blade, nerve damage in arm, shearing-off of ligaments and muscles in arm, collapsed lung, repeated operations, permanent loss of use of arm, and permanent pain in shoulder, jury awarded $568,000 in non-economic damages, upheld by reviewing court]; Honea v. Matson Navigation Co. (N.D. Cal. 1972) 336 F.Supp. 793, 795, 797-799 [where slip-and-fall resulted in fractured left hip, death of a piece of bone due to lack of blood supply, and possible permanent confinement to a wheelchair, court awarded $75,000 in non-economic damages, including pain and suffering];

Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at pp. 504, 506, 508-509 [bus accident caused fractures of left heel and shin bones, severed nerves and arteries to left foot and persistent open ulcer; Court conceded that non-pecuniary damages award of $134,000 was high but upheld it, stating that it was intended to compensate for pain and suffering, past and future, humiliation as a result of being disfigured and permanently crippled, and constant anxiety and fear that the leg will have to be amputated ];

Continue reading "Plaintiff In Sacramento Car Accident Case Rendered Impotent, Part 11 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

In Randolph v. Budget Rent-A-Car (C.D. Cal. 1995) 878 F.Supp.162 (reversed on other grounds in Randolph v. Budget Rent-A-Car (9th Cir. 1996) 97 F.3d 319), the court (following a court trial) determined plaintiff's damages arising from an auto accident. (Id. at pp. 163-164.) The court described the plaintiff's injuries as follows:

As a proximate result of the automobile accident John Randolph has suffered extensive orthopedic injuries. His left knee has a fractured tibial plateau and a tear of its anterior cruciate ligament; his pelvis was fractured resulting in the separation of his pubic rami; his pelvic region suffered a severe hematoma, resulting in a major rectus muscle injury; and the third and fourth metacarpal of his left hand were also fractured. In an effort to alleviate some of the pain John Randolph has been suffering, he must undergo two future surgeries. The first is to remove metal fragments from his left knee; the second is to replace the knee with an artificial knee implant. Further, it is quite possible that a second knee replacement operation will be needed if the first replacement does not work. (Id. at pp. 164-165.)

While the plaintiff in Randolph also suffered impotence as a result of his injuries, he was separately compensated for this by the court. (Id. at p. 166.) For his total past and future pain and suffering arising from the injuries described above, however, the court awarded him a total of $500,000. (Ibid.) The court explicitly based its determination on a survey of compensation for similar injuries in this and other jurisdictions. (Ibid.)

Continue reading "Sacramento Car Collision Victim Suffered Multiple Injuries, Part 10 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

It is true, of course, that every case is different, and that the value of an award in one case cannot be determined to be unreasonable on the basis of awards in other cases. However, the Supreme Court encourages trial courts, when reaching a determination concerning the reasonableness of the amount awarded by the jury, to consider damage awards in other cases. In discussing appellate review of a denial of motion for new trial based on excessive damages, the Supreme Court remarked in Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d 498, that, [w]hile the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. (Id. at p. 508.)

More recently, in Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, the court cited to the language in Seffert quoted above, and, based on it, conclude[d] that while it is appropriate to look at awards in similar cases, ultimately we must determine the propriety of the award based upon the facts of this case. (Id. at p. 550.) The court also found that a comparison of other cases may give us a point of reference . (Id. at p. 552.)

While it is true that the physical injuries and pain and suffering are different in all cases, they also share similarities. If they did not, then jurors would have no means by which to determine, in the first place, a reasonable amount of damages on the basis of their own experience as human beings.

Continue reading "Sacramento Auto Collision Victim Catastrophically Injured, Part 9 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

The Jury's $5.4 Million Non-Economic Damages Award to Mr. Ward Is Excessive

The jury awarded $5,400,000 past and future non-economic damages to Mr. Ward. This amount suggests a "per year" approach by the jury, in that this amount is precisely equal to $150,000 per year, multiplied by a life expectancy from the time of the auto accident of 36 years.
In general, a jury violates the law when it uses a mathematical formula to arrive at a figure for damages. (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 755-756, citing to Beagle v. Vasold, supra, 65 Cal.2d at p. 172.) The taking of a per-year or per-diem approach (i.e. where a dollar value is equated with pain and suffering over a unit of time) is an exception to this rule. (Beagle at pp. 179-180.) However, the use of this method can still lead to unreasonable results because, like any formula, it removes the determination of damages for pain and suffering from the realm of human experience. In his dissenting opinion in Beagle v. Vasold, supra, 65 Cal.2d 166, Justice Traynor strongly disapproved the use of per diem formulas, correctly observing that [n]one of these formulas appears unreasonable on its face, for there is no basis in human experience for testing their reasonableness. (Id. at pp. 183-184.) He concluded that [i]t is therefore unrealistic to seek an appropriate award for pain and suffering by the use of any so-called per diem formula. (Id.)

The Beagle majority addressed this concern by stating that, [W]hatever manner of calculation is proposed by counsel or employed by the jury, the verdict must meet the test of reasonableness. The per diem argument is only a suggestion as to one method of reaching the goal of reasonableness, not a substitute for it. If the jury's award does not meet this test, the trial court has the duty to reduce it.... (Beagle, supra, at pp. 179-180.)

Continue reading "Jury In Sacramento Car Accident Case Compensates Victim, Part 8 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

The remaining amount of nearly $2,000,000 in the "life care plan" includes $837,000 for interventional pain therapies that Mr. Ward's own experts admit he may or may not need; $413,400 in household help and attendant care that he may or may not need; and $350,000 for lumbar and cervical spine surgeries based on the estimate of Dr. Sam Stein. The lesser amounts are for items which are even more speculative: $113,838 for supposedly anticipated medical evaluations and treatment in every conceivable field of medicine (including psychiatry, psychology, podiatry, dentistry, gastroenterology, urology, neurology, and internal medicine) which his experts and attorneys are once again being disingenuous in suggesting are tied to actual anticipated expenses; "other therapeutic interventions" in the projected amount of $90,855; additional diagnostic studies totaling $51,743; and a projected cost of $34,625 for emergency room visits.

These costs simply bear no rational relation to any expected, concrete future expense. And those few that do bear at least some rational relation (e.g., the surgeries by Dr. Stein and the interventional pain therapies consisting of the opium pump) are wildly inflated and unsupported as to their amounts.

Continue reading "Sacramento Jury Awards Millions To Accident Victim, Part 7 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

The Jury's $3,185,711 Economic Damages Award to Mr. Ward Is Excessive

The jury awarded Mr. Ward economic damages consisting of future medical expenses in the amount of $3,185,711. This was based on the testimony of Dr. Frank Shin, the substance of which is reflected in Dr. Shin's "Life Care Plan," which states a purported total cost figure of $4,685,561. That means the jury awarded roughly 68% of the amount asked for by the plaintiffs.

Dr. Shin's "Life Care Plan" purports to state the precise cost of surgical procedures, individual medications, and medical treatments of every imaginable variety. (Dr. Shin's testimony was the only evidence presented at trial in support of the amounts stated on this document.
The life care plan states an estimated lifetime cost for medications totaling the unbelievable sum of $2,708,200. This sum was reached by multiplying Mr. Ward's supposed remaining life expectancy of 35 years (i.e. 420 months) by the monthly cost of a total of ten different medications, plus an additional $250,000 for botox injections. (This amount in particular is clearly overstated, since the total cost is listed as $5,000 per year, which, multiplied by a 35-year life expectancy comes only to $175,000, not $250,000.)

Continue reading "Sacramento Car Collision Victim Faces Long Recovery, Part 6 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

This Court Is the Only Forum in which Defendants Can Realistically Seek a New Trial Based on Excessive Damages Awarded by the Jury

As discussed above, while this Court is able to re-weigh evidence and determine whether damages are excessive based on a standard of reasonableness, the court of appeal is governed by a far different standard. That means if this Court denied this motion, the court of appeal could find the jury's award excessive only if it found the amount of the award was so high as to clearly have been the result of passion or prejudice on the part of the jury. (Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at p. 507.)

The inability of the court of appeal to re-weigh evidence gives rise to differing standards of review between it and this Court. As Witkin explains, The appellate court does not weigh the evidence on damages, and will reverse a judgment on appeal only if no substantial evidence supports the award. But the trial judge is not bound by the rule of conflicting evidence and may grant a new trial if the award is against the weight of the credible evidence. (8 Witkin Cal. Procedure 4th (2002) sec. 37, p.542.) Necessarily, the court of appeal accords a great deal of weight to the finding of the trial court, when, after a re-weighing of the evidence, the trial court has concluded that the jury's verdict is reasonable. (See Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614-615.)

Continue reading "Sacramento Car Accident Victim May Face Second Civil Trial, Part 5 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

This legislative note alludes to the fact that, while the statute had on its face previously required a finding of "passion or prejudice," this requirement was contrary to valid Supreme Court case authorities, which had embraced the reasonableness standard based on a re-weighing of the evidence. Even though this Court need not find passion or prejudice influenced it, the award of damages here surely can be viewed that way. Given the parade of experts and the inflated numbers submitted to the jury, the outrageous amount here could be set aside for that reason, if it were necessary. (See Beagle v. Vasold (1966) 65 Cal.2d 166, 179-180 [ [W]hatever manner of calculation is proposed by counsel or employed by the jury, the verdict must meet the test of reasonableness....

If the jury's award does not meet this test, the trial court has the duty to reduce it ]; Sinz v. Owens (1949) 33 Cal.2d 749, 760 [the Court refers to a line of cases which "realistically conclude that an order for a new trial on the basis of excessive damages" necessarily is granted on the ground of the insufficiency of the evidence to sustain a verdict for the amount awarded by the jury]; Van Ostrum v. State (1957) 148 Cal.App.2d 1, 7 [court holds that, [t]he trial judge had the duty as well as the power to set aside the verdict when he found, pursuant to his own independent appraisal of the evidence, that it did not support an award of $4,000; it was not necessary for him to find passion or prejudice on the part of the jurors ].)

Continue reading "Defendant In Sacramento Car Collision Case Seeks New Trial, Part 4 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

Initially, it is important to note that the statute establishes exactly what the court must find in order to determine that an award of damages is excessive. It must find, based on the evidence presented at trial, that the jury's verdict--the amount of damages--was unreasonable and therefore should have been different. Unlike a court of appeal sitting in review of an order denying a motion for new trial, the trial court need not find that the award is so large that it must necessarily have resulted from "passion or prejudice" on the part of the jury. The Supreme Court explained the reason for this distinction in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498:

The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented it becomes his duty to reduce them. When the question is raised his denial of a motion for new trial is an indication that he approves the amount of the award. An appellate court has no such powers. It cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors. (Id. at p. 507, quoting Holmes v. Southern California Edison Co. (1947) 78 Cal.App.2d 43, 51.)

Continue reading "Sacramento Car Accident Defendant Fights Huge Damage Award, Part 3 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

BRIEF STATEMENT OF FACTS
In this action, Mr. and Ms. Ward sought to recover for injuries he sustained in an automobile accident that occurred on October 15, 2004; liability was admitted. Following the completion of jury selection, the trial of this action commenced on June 7, 2007 and finished on June 26, 2007. The jury reached its verdict the following day, after about four hours of deliberation. It awarded a total of $10,105,711 consisting of: $3,185,711 to Mr. Ward in future medical expenses, $5,200,000 to Mr. Ward in past and future non-economic damages, and $1,620,000 to Ms. Ward for loss of consortium.

LEGAL DISCUSSION
Each of the jury's three basic awards of damages is unreasonably excessive and unsupported by the evidence presented at trial. The awards must be reduced by this Court under Code of Civil Procedure section 662.5(b). In the event that plaintiffs are unwilling to accept remittitur, this Court should order a new trial.

This Court Can and Must Order a New Trial Where the Damages Awarded by the Jury Are Clearly Excessive Based on a Reasonableness Standard

Continue reading "Sacramento Jury Awards Huge Damages For Auto Accident Victim, Part 2 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

DEFENDANTS’ MOTION FOR NEW TRIAL
MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION
The trial court is the sole line of defense against excessive jury verdicts. This Court is thus empowered to re-weigh the evidence, and to determine independently whether the evidence justifies the amount awarded by the jury. That power should be exercised here, if ever there were a time to do so.

Here, the jury awarded the astonishing amount of $10.2 million against Zenkov for injuries suffered by Mr. Ward, and the loss of consortium suffered by Ms. Ward. Yet there was no catastrophic injury here of the type justifying $10.2 million. This amount is not an amount which a reasonable person would estimate as fair compensation for plaintiff's serious--but not catastrophic-- injuries. These awards are utterly unreasonable, and this Court must act. For if it does not, then Zenkov will have no practical other legal avenue by which to seek a reduction of the monstrous amount which has been awarded against him.

Mr. Ward did, of course, present evidence at trial that he has suffered serious--but not catastrophic--injuries due to the auto collision. The evidence is of injuries to his neck, back, and knee, which cause him to suffer chronic pain for which he must take powerful drugs, and which will require surgery in the future. These injuries, while substantial, simply do not justify an award of $10.2 million. This is so because, while the evidence may have shown that Mr. Ward's injuries have affected his quality of life, the same evidence also showed conclusively that his injuries have come nowhere close to destroying his life.

Continue reading "Sacramento Man Seriously Injured In Auto Accident, Part 1 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Contrary to Defendant's argument that it is necessary for a meeting between co-conspirators for form a conspiracy, The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and circumstantial evidence. It is not necessary to show a meeting of the alleged conspirators or the making of an express or formal agreement. (BAJI California Jury Instructions, Civil 9th Ed., 2002, P. 205) (Emphasis added) Kidron v. Movie Acquisition Corp. 40 Cal.App.4th 1571, 1583 (1995)

It is clear from the events that occurred the night of December 19 and early morning of December 20, 2006, that Stacy Greene and El Mexicano knowingly conspired to violate Business & Professions Code Sec. 25602.1, planning their wrongful acts, assisting each other, knowing their acts were wrongful and unlawful. El Mexicano andStacy knowingly conspired to violate Business & Professions Code Sec. 25602.1. Plaintiff's TAC has alleged numerous facts to establish thatStacy knowingly co-conspired with El Mexicano Restaurant to "sell, furnish, give or cause to be sold, furnished or given away any alcoholic beverage" to an "obviously intoxicated minor," Matt Smith, in violation of Business & Professions Code Sec. 25602.1. There must be a showing of knowledge of the planned tort and intent to aid in its commission. Wyatt v. Union Mortgage Co. 24 C.3d 773,784 (1979)

Stacy brought the minors to El Mexicano so that they could be entertained on the night and early morning of December 19, 20, 2006.

Continue reading "Drunk Driving Car Accident Kills Sacramento Teens, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

DEFENDANT STACY GREENE CONSPIRED WITH EL MEXICANO RESTAURANT TO VIOLATE BUSINESS AND PROFESSIONS CODE SEC. 25602.1

Plaintiff's Third Cause of Action alleges that Defendant Stacy Greene conspired with El Mexicano Restaurant and Bar to violate Business & Professions Code Sec. 25602.1. Conspiracy is a legal doctrine that imposes liability on persons who, although not committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a co-conspirator effectively adopts as his or her own the torts of other co-conspirators within the ambit of the conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. 7 C.4th 503,510,511 (1994))

The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design... (Applied Equipment Corp. v. Litton Saudi Arabia Ltd supra. 7 C.4th at 511) DefendantStacy need not share the same duty as a licensed purveyor to sell alcohol to engage in a conspiracy to violate Business & Professions Code Sec. 25602.1 as defendant's have erroneously argued. Defendant's reliance on Doctors' Co. v. Superior Court 49 Cal.3d 39, 47 (1989) is misplaced. There has never been an allegation that Stacy was acting as an agent for El Mexicano. Doctors' Co. held that an alleged conspirator to an agreement was not personally bound by the duty if he was acting only as the agent or employee of the party who did have that duty. (Doctors' Co. v. Superior Court supra. 49 Cal.3d at 47) El Mexicano, a corporation, is liable because the acts of selling or furnishing alcoholic beverages to an obviously intoxicated minor were ratified and approved by a corporate officer. (See Part 8 of 8.)

Continue reading "Sacramento Birthday Celebration Ends In Deadly DUI Car Accident, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Since the Greenes had assumed an affirmative duty to protect, control and supervise him on the night and early morning of December 19, 20, 2006. [t]he finding of a duty to provide assistance depends upon a showing of special factors such as would give rise to an expectation that assistance would be provided and a showing that due to these factors the victim detrimentally relied upon that expectation or was otherwise dependent upon the defendant for assistance. (cf.Andrews v. Wells supra, 204 Cal.App.3d at 540) However, the Greenes breached their duty by allowing Paul to ride home with a drunk driver.

In Tarasoff v. Regents of University of California 17 C.3d 425,435 (1976) our California Supreme Court held that "as a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct," the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. (Citations omitted) If the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions... (Brockett v. Kitchen Boyd Motor Co. 264 C.A.2d 69,72 (1968) (citing Valdez v. Taylor Automobile Co. 129 Cal.App.2d, 810,817 (1954).)

The case of Brockett v. Kitchen Boyd Motor Co. was an action for personal injuries by occupants of an automobile against the employer of a minor who became intoxicated at a Christmas party, drove his vehicle, which collided with the plaintiff's causing them injuries. The lower court sustained defendant's demurrer without leave to amend and was reversed by our Court of Appeal. The Court held that It is our view that the alleged relationship between the minor Huff and Kitchen Boyd Motor Company was such that the defendant had assumed the responsibility for the well-being and proper conduct of the minor in the circumstances here for not only the minor's protection, but also for the protection of the general public through the exercise of ordinary care. (Brockett v. Kitchen Boyd Motor Co. supra. 264 C.A.2d, at 72.)

Continue reading "Three Sacramento Families Suffer After Deadly Car Accident, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

DeBolt v. Kragen Auto Supply, Inc. 182 Cal.App.3d 269 (1986) involved a host (Kragen Auto Supply) of a beach party who supplied and served a minor alcoholic beverages to the point where the minor became intoxicated and disorderly. Kragen ordered the minor to leave the party, but took no affirmative action to provide any alternative or safer means of transportation for her, so the minor drove her own car, ultimately plowing into a motorcycle killing two people. The Court of Appeal determined that Kragen was a social host and was immune from liability under Civ. Code Sec. 1714, B & P Code Secs.25602 and 25602.1. Kragen had no "special relationship" with any of the minors as did the Greenes in the present case.

Cory v. Shierloh, 29 Cal.3d 430 (1981), again a social host, furnished Plaintiff with alcoholic beverages, but the Court held that plaintiff's injuries were the result of her own intoxication. This case is clearly distinguishable as Plaintiff's injuries were not a result of his own intoxication but as a result of the Greenes breaching their duty of due care based upon their "special relationship" and allowing him to ride home with a drunk driver.

Chalup v. Aspen Mine Co. 175 Cal.App.3d 973 (1985), where an 18 year old became intoxicated in a restaurant and when she left she ran across the street against a traffic signal into the path of a car. The Defendant in this case was a licensed purveyor of alcohol, but the Court held that the injured minor who buys liquor while she is obviously intoxicated may state a cause of action under B & P Code Sec.25602.1. Again, this case is clearly distinguishable from the present case as the Greenes failed to protect Paul from riding home with a drunk driver, as was their duty of due care based upon their "special relationship" with him. It did not involve the sale of alcohol to Plaintiff.

Continue reading "Sacramento Minors Involved In Deadly DUI Car Crash, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

The only case the Greenes have cited in opposition to Plaintiff's Second Cause of Action- special relationship is Elizarraras v. L.A. Private Security Services, Inc. (108 Cal.App.4th 237 (2003)) (L.A. Private Security Services, Inc. was hired by a restaurant as security guards and their job responsibility did not include preventing patrons from drinking and driving, thus they had no special duty of care to prevent minors from consuming alcoholic beverages as its job responsibility is not equivalent to a legal duty of care to underage patrons to prevent them from drinking or driving while intoxicated ).

Defendants’ demurrer contains pages of boilerplate information about the legislative history, definitions and interpretation of the 1978 amendments to Civ. Code Sec. 1714 and B & P Code Secs.25602 and 25602.1. Although this historical information may be interesting, it does not relate to the particular facts alleged in Plaintiff's TAC, the First and Second Causes of Action and the special relationship that existed between the Greenes and Paul.

Defendants' reliance on these cases is misguided and can be distinguished both factually and legally. Defendant El Mexicano does not dispute liability for serving alcohol to an obviously intoxicated minor, specifically Danny Smith, age 18, the evening of December 19 and early morning of December 20, 2006 in violation of B & P Sec.25602.1.

Continue reading "Sacramento Family Loses Children In Fatal DUI Car Accident, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

THERE EXISTED A SPECIAL RELATIONSHIP BETWEEN THE GREENES AND PLAINTIFF AND PLAINTIFF’S FIRST AND SECOND CAUSES OF ACTION FOR NEGLIGENCE AND NEGLIGENT SUPERVISION-SPECIAL RELATIONSHIP ARE DISTINGUISHED FROM THE CASE AND STATUTORY LANGUAGE OF BUSINESS & PROFESSIONS CODE 25602.1 THAT DEFENDANTS HAVE CITED

Actionable negligence involves a breach of a legal duty of care that proximately causes injury. Because there existed a special relationship between the Greenes and Plaintiff Paul Verano, age 14 at the time of this tragic car accident-- their promise to "be there" for him and his reliance on the expectation that they would protect, control and supervise him on the night and early morning of December 19, 20, 2006, they are liable for Plaintiff's injuries based upon the affirmative duties arising from this "special relationship." (cf.Andrews v. Wells supra, 204 Cal.App.3d at 541.)

Defendants contend that that Plaintiff's First and Second Causes of Action for Negligence and Negligent Supervision are barred by Business and Professions Code Secs. 25602, 25602.1, because the Greenes are not "licensed purveyors of alcohol" and were only patrons in El Mexicano Restaurant when some alcohol was consumed by Smith at some point after he was obviously intoxicated before the accident occurred. Defendants claim that they had no legal duty of care and are immune from liability pursuant to Civ. Code Sec. 1714, B & P Code Sec. 25602.1 for Plaintiff's injuries that occurred because they allowed Plaintiff to get into a vehicle driven by Smith, a drunk driver, who crashed his vehicle into a tree, killing himself, two passengers and severely injuring Plaintiff.

Continue reading "Sacramento Restaurant Served Minors Before Fatal Car Accident, Part 3 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

PROCEDURAL HISTORY
Plaintiff filed a lawsuit on May 1, 2007, against the Estate of Danny Smith and Richard Smith, Case No. SC2007-09, which resulted in a settlement and this Court approved Plaintiff's Petition to Compromise a Disputed Claim on February 29, 2008. During the course of litigation in that case facts became evident that Danny Smith, a minor, was "obviously intoxicated" at El Mexicano Restaurant and served alcoholic beverages - beer and Tequila shots, throughout the evening before and the early morning of the fatal car crash. There are three other related cases that were ordered consolidated by this Court February 23, 2009.

El Mexicano was fictitiously named as Doe 1 February 13, 2008. Plaintiff filed and served a FAC on Defendant El Mexicano, which it answered on June 17, 2008. El Mexicano does not dispute that it violated Business & Professions Code Sec. 25602.1 and has already reached settlements with some of the Plaintiff's. Plaintiff Verano's FAC was served on Robert Greene, Doe 2 and Stacy Greene, Doe 3. Defendants demurred to Plaintiff's FAC, and the hearing on demurrer was held April 3,2009. Plaintiff was allowed to amend his complaint and served his TAC on Defendants. A trial date has been set for November 30, 2009.

PLAINTIFF SHOULD BE ALLOWED TO FILE HIS THIRD AMENDED COMPLAINT. THIS IS BECAUSE PLAINTIFF'S POSITION IS STRONGLY SUPPORTED BY PUBLIC POLICY INTERPRETED TO ALLOW TIMELY AMENDMENTS TO PLEADINGS (C.C.P. SEC. 473) AND THE TAC SATISFIES THE REQUIREMENTS OF THE RELATION BACK DOCTRINE

First, there is strong public policy that allows a party to amend any pleading so that they may litigate cases on their merits. (Code of Civil Procedure Sec. 473.)

Continue reading "DUI Car Accident Injures Sacramento Teen, Part 2 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Plaintiff's Opposition to Defendants Robert and Stacy Greene's Demurrer to Plaintiff's Third Amended Complaint

MEMORANDUM OF POINTS AND AUTHORITIES

CASE SYNOPSIS
This lawsuit arises from an automobile accident that occurred on the morning of December 20,2006, at approximately 1:00 a.m. near the intersection of Fair Oaks Blvd. and Howe Avenue, in Sacramento. Defendant Danny Smith, age 18, was driving a 2002 Toyota Camry, owned by his father, Defendant Richard Smith. His passengers were Mike Greene, age 19, Tom Lawrence, age 18, Kevin Greene, age 15, and Plaintiff Paul Verano, age 14. The youths had been celebrating Kevin Greene's 15th birthday at El Mexicano restaurant in Sacramento the evening of the 19th and early morning of the 20th.

Defendant Danny Smith left the restaurant in an intoxicated state, was proceeding eastbound on Fair Oaks in the no. lane in his Camry, speeded up to pass Stacy Greene, Kevin Greene's sister, who was driving in front of him. As Defendant Danny Smith moved into the no. 2 lane to pass Stacy, he apparently tried to slow to avoid hitting another car that was already in the no. 2 lane in front of him, lost control of his vehicle, jumped the curb and struck a tree on Fair Oaks. The impact was so severe that the Camry burst into flames, trapping the youths inside the vehicle. Defendant Smith, Mike Greene and Tom Lawrence were killed. Plaintiff Verano and Kevin Greene, who were seatbelted and sitting in the rear seat, survived the crash. Plaintiff Verano suffered serious injuries. (See Part 2 of 8.)

Continue reading "Sacramento Teens Killed In Car Accident, Part 1 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

The Frontage Road is not a bicycle lane and should not be referred to as such. A bicycle lane is a term of art, defined by statute. CVC Section 21207 permits local authorities to establish bicycle lanes upon streets, as defined in Section 24 of the Streets and Highways Code pursuant to Article 5 (commencing with Section 1720) of Chapter 9 of Division 2 of the Streets and Highways Code. Bicycle lanes thus established must comply with Section 891 of the Streets and Highways Code, which sets forth the definition of a bicycle lane. Under Streets and Highways Code Section 890.4, there are three categories, called bicycle paths, lanes and routes, as follows:

(a) Class I bikeways, such as a bicycle path, provide a completely separated right of way designated for the exclusive use of bicycles and pedestrians with cross-flows by motorists minimized;

(b) Class II bikeways, such as a bicycle lane, provide a restricted right of way designated for the exclusive or semi-exclusive use of bicycles with through travel by motor vehicles or pedestrians prohibited, but with vehicle parking and cross-flows by pedestrians and motorists permitted.; and

(c) Class III bikeways, such as a bike route, provide a right of way designated by signs or permanent markings and shared with pedestrians or motorists.

Continue reading "Bicycle Path Source Of Dispute In Sacramento Bicycle-Auto Collision, Part 7 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

11. Defendant's Theory of the Case

Plaintiff is 100% negligent and is the sole cause of the auto collision and his resultant injuries. There is no evidence that defendant violated any law or ordinance or did something that a reasonably careful person would not do in the same situation, or that defendant failed to do something that a reasonably careful person would do in the same situation. At all times, defendant used reasonable care to prevent injury to himself and to others.

The accident occurred in one of two ways:
(a) Plaintiff came riding down the sidewalk in violation of Sacramento Traffic Ordinance Section 96 (bicycle on a sidewalk), failed to keep a careful lookout for cars turning right from the Boulevard onto Ridge and failed to yield the right of way to defendant, who was lawfully traveling east on Ridge; or

(b) Plaintiff came riding down the Frontage Road, ran through the stop sign at Ridge, failed to keep a careful lookout for cars turning right from the Boulevard onto Ridge and failed to yield the right of way to defendant, who was lawfully traveling east on Ridge.

Continue reading "Sacramento-Area Automobile Driver Claims Bicyclist Riding Illegally, Part 6 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

INDEPENDENT MEDICAL EXAM (IME)
Plaintiff attended a defense medical examination on July 24, 2008, conducted by Dr. Stuart U.. Dr. U. is a board certified neurologist and is, also, a board certified psychiatrist. Dr. U. could find nothing wrong with plaintiff. Dr. U. suggested that plaintiff's complaints of pain and achiness might be related to his heavy work for Williams-Sonoma (e.g., moving furniture and other items to and from photo shoots at various locations). Dr. Stuart U. concluded that plaintiff has no restrictions and needs no ongoing treatment as a result of the accident. At no time, excluding the x-rays of plaintiff's feet in the ER and by Dr. V. and the findings by Dr. Z., the gastroenterologist, did any doctor make any objective findings that correlate with plaintiff's plethora of subjective complaints.

Doctors must believe their patients, but jurors need not do so. Thus, this trial will involve the credibility of plaintiff, both as to liability and as to causation of injuries and damages. There are a number of inconsistencies with respect to plaintiff's history and complaints as set forth in medical and other records, not specified herein.

Alleged Special Damages
a. Medical Specials
Plaintiff's counsel informs us that plaintiff's medical specials total approximately $18,000.00; the defense has been able to determine only $4,100.00.

Plaintiff's Vehicle Code and Traffic Code Violations
California Vehicle Code Section 21200(a) provides, in substance, that every person riding a bicycle on the highway is subject to all of the provisions applicable to the driver of a vehicle. Plaintiff is culpable of violating the following California Vehicle Code sections that directly caused the accident, thus creating a negligence per se situation:

Vehicle Code Sections

21201(d)(1) Failure to have a headlight at night
22450(a) Failure to stop at stop sign
21650 Failure to ride bicycle on right half of roadway
21802(a) Failure to stop at stop sign and yield right of way
21804(a) Failure to yield right of way on entering or crossing highway

Continue reading "Medical Experts Battle In Sacramento Car Accident Suit, Part 5 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Plaintiff alleges that as a result of the automobile accident, he also suffered lingering pains that consisted mostly of: headaches, neck aches, back and low-back pain, a knee that seems to dislocate or give-way, ankle pain and cramping of his feet. Plaintiff's current residuals are alleged to be primarily his feet/toes, neck and low-back. Plaintiff alleges that his current residuals are, essentially, (a) pain and stiffness at the three fracture sites and painful ambulation, (b) crepitus in plaintiff's neck, a crackling not associated with pain and (c) mild recurrent low-back pain. Plaintiff also fears the onset of arthritis as a result of his injuries.

Plaintiff's Treatments
After discharge from the ER, plaintiff's next medical visit was seven months later, when plaintiff was first examined by his doctor, Dr. Kyle X., a generalist, on May 22, 2007, seven months post-accident. The given reason for the examination, as Dr. Kyle X. testified at his deposition, is that plaintiff's chief complaint was pain to the right groin, which is what brought plaintiff to Dr. Kyle X.. The examination was not, according to Dr. Kyle X., because of the accident. Dr. Kyle X. was told about the accident, but did not consider that he was treating plaintiff as a result thereof. Dr. Kyle X. prescribed physical therapy, lab tests and a return to his office. Dr. Kyle X.'s records reflect that his final determination was Impression: Well CPE (i.e., that plaintiff was found to be well after a Comprehensive Physical Examination ). Plaintiff did voice complaints about low-back and abdominal pains and Dr. Kyle X., therefore, told plaintiff to see a neurologist, a Dr. Stan Y.. Plaintiff did not do so, plaintiff did see a different neurologist, Dr. Alice W., but not until April 11, 2008, about 16 months post-accident.

Continue reading "Bicyclist From Sacramento Suffers Long-Term Injuries From Car Collision, Part 4 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Alleged Injuries
It is not disputed that plaintiff sustained a fracture of each of his big toes and, also, a fracture of the second toe of his right foot. It is, also, not disputed that plaintiff currently has some reduced range of motion in curling the toes that were fractured (flexion) and that in the first phalange of his second right toe there is about 15degrees of obliquity with respect to the second phalange thereof.

Additionally, it is not disputed that plaintiff sustained abrasions (road rash) to the top of his head, his face, abdomen, both hands and both knees. Said injuries were described in the paramedic records and in the ER records at General Hospital. There was no loss of consciousness and plaintiff's GCS (Glasgow Coma Scale- a measure of brain injury potential) was a perfect 15 out of 15. Plaintiff was given a small injection of morphine sulfate and was given a prescription for Vicodin tablets. Plaintiff underwent x-rays of his chest and neck at the ER, which were negative.

Continue reading "Sacramento Automobile Driver Challenges Some of Bicyclist's Injuries, Part 3 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Description of Street at Accident Scene

The intersection of River and Ridge is controlled by a tri-light signal system. There is no tri-light signal facing the frontage road or facing the sidewalk; the tri-light signal faces the Boulevard (i.e., the four main travel lanes of River). The frontage road has a stop sign controlling each corer; the sidewalk has a walk/don't walk signal at River and Ridge.

At the area of the accident, River is a relatively new Boulevard Project, inaugurated in the summer of 2006. The Boulevard has two through lanes going north and two through lanes going south; these four through lanes are divided by a raised concrete median, four feet wide, planted with trees. There is no parking along the through-lanes, which are each 11 feet wide (i.e., narrower than a standard freeway lane). Instead, there is another four-foot wide raised concrete median at each outer edge of the through lanes, also planted with trees. These latter medians border the through lanes on the east and west edges thereof. Next, there is an 18-foot wide paved street, marked One Way eastbound and westbound (also part of the Boulevard Project) for motorized traffic, bicycles and for parking. The parties refer to this street as the Frontage Road.

Continue reading "Sacramento Car Accident Leaves Bicyclist With Fractured Feet, Part 2 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Defendant's Trial Brief

Type of Action
This is a two-party bodily injury action arising from a traffic accident involving a bicycle and an automobile.Factual Summary
Description of Accident
The defense contends that plaintiff is solely to blame for causing the subject accident (hereafter "the accident" ) and defendant is not liable for any injuries or damages that plaintiff sustained.

This is a contested liability, contested injuries/damages action arising from a bicycle versus auto collision that occurred on Halloween night, October 31, 2006, at approximately 9:20 p.m. Defendant Tina Lu, then age 23, was making a right turn from northbound River Drive onto Ridge Road, driving her 2004 Toyota Camry. Plaintiff Paul Nathan, then age 22, was riding a bicycle without a helmet, down the hill on River toward Ridge. Prior to defendant's right turn, the parties were traveling parallel to each other (northbound), though not on the same street, as explained below. It is contested whether plaintiff was riding on the sidewalk as contended by defendant, or whether plaintiff was riding on the Frontage Road (defined below) as contended by plaintiff. In either event, plaintiff was attempting to cross Ridge and continue northward at the same time that defendant was attempting to turn right and head eastbound on Ridge. The parties were at right angles to one other at the moment of impact.

Continue reading "Sacramento-Area Car Driver Collides With Bicyclist, Part 1 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Plaintiff will contend the automobile accident happened after 9:00 p.m., on Halloween Night. The evidence will demonstrate this location, just a few blocks from University Avenue, was particularly congested with pedestrian traffic at that time. Defendant was driving too fast in view of the prevailing conditions and failed to see Mr. Nathan before starting her right turn. Her turn took her across another lane of northbound traffic on River Drive and through a pedestrian crosswalk which is controlled by a signal on the same sequence as north-south River Drive traffic.

Plaintiff's Damages
Mr. Nathan was taken to Sacramento General's trauma center via ambulance immediately after the accident. He underwent a variety of x-rays and other diagnostic tests, was given IV Morphine and then Vicodin prior to being released the following day. Because he had sustained fractures in both feet he was sent home by taxi and with immobilizing devices on both feet. He was off work for four to six weeks and was subsequently treated for persistent headaches; abdominal pain; low back pain and bilateral foot pain.

During the course of treatment he was seen in consultation by two neurologists, and a podiatrist. He also had a very brief course of physical therapy. He has continuing complaints of occasional headache pain and of stiffness, lack of mobility and pain in both feet. There is every probability he will suffer from arthritis in both feet and will do so for the remainder of his life.

Continue reading "Sacramento Man Injured When Car Collides With His Bicycle, Part 3 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The intersection in question is, to say the least, unusual. There is a stop light that controls north and southbound traffic on River Drive. This light is visible for quite some distance (particularly at night). At the time of this accident the newly-constructed roadway had only recently been opened to traffic. It was an ancillary project as part of the Central Freeway Replacement. It is disputed whether there was or was not a stop sign for the bicycle path portion of River Drive. Plaintiff contends there was no sign in place at the time of the accident.

The investigating officer testified at deposition as follows:
Q. Is there a stop sign at the corner at that Frontage road, that you're aware of?
A. I don't believe so....And I don't believe there's a stop sign there, but I'm not a hundred percent sure. It's not indicated in the report. So I would say, there is no stop sign there.

Photographs-of the intersection taken well after the accident do show a stop sign, although it is substantially obscured by trees which were planted along the right curb of the bicycle path. Various photographs of the accident scene demonstrate its appearance (copies of which are available for review). These photographs likewise illustrate the problematic nature of the intersection.

Defendant contends the portion of the River Drive roadway to the right of the divider is not a bicycle path. They prefer to call it a frontage road. The nature of the roadway and its use is a question of fact.

Continue reading "Automobile Accident Involving Sacramento Driver And Bicyclist, Part 2 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Plaintiff's Trial Brief

Factual Background and Disputed Issues

This is a traffic collision personal injury action that arises from an October 31, 2006 accident. Plaintiff, Paul Nathan, was riding on the bicycle path portion of River Drive. Defendant, Tina Lu, was driving on River Drive after having exited Highway 50 on her way home from working in El Dorado Hills. Plaintiff's portion of River Drive is divided from the main lanes by a divider. At the intersection of River Drive and Ridge defendant made a right hand turn across the path of plaintiff's bicycle. The bike's front wheel struck the car and Mr. Nathan was thrown over the car and onto the pavement.

Both vehicles had been moved before the investigating officer arrived. Mr. Nathan was taken from the scene via ambulance prior to being interviewed by the officer. There were no skid marks noted by the officer, no debris in the street noted and thus no accurate means of determining the point of impact or the point of rest of either the vehicle or of Mr. Nathan’s bicycle.

Defendant asserted plaintiff had ridden into the street from the sidewalk. The officer concluded the bicycle had been traveling on the sidewalk and thus entered the intersection in the crosswalk.

Continue reading "Sacramento Bicyclist Injured In Car Collision, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

Defendant's underwriters state that they act as soon as they receive the relevant medical records. Yet underwiter Ms. Smith did not act in this case after receiving Dr. Xavier W.'s medical report concerning Bob Lawrence on March 2, 2001. See defendant's statement of facts, fact numbers 62-65. She could have rescinded the contract based on that information but chose not to do so. Instead, she waited three more months to act, during which time Mr. Lawrence sustained injuries which defendant later chose not to cover. She did this, too, without alerting plaintiffs that there was a possibility their coverage might be terminated. Had she informed them of this possibility in a timely manner, plaintiffs could have obtained replacement coverage that would have been in effect at the time of Bob Lawrence's automobile accident.

Furthermore, Ms. Smith testified that her practice was to rescind a contract if allowing the coverage to continue would cost Blue Shield more money, but not otherwise. In addition, upon recent review of defendant's first motion for summary judgment, it appears that Ms. Smith and Ms. Bird have submitted declarations in support of the present motion that are materially different from those they submitted the first time around. Plaintiffs will utilize the additional time they request herein (argument III, infra), in part, to examine these apparent discrepancies in more detail.

Another serious matter is defendant's intentional omission of parts 4-9 of Sally Lawrence's paper application from the online version of the application which defendant includes in its motion. The omission is significant for several reasons. First, the omitted parts contain critical information regarding Sally Lawrence's irritable bowel condition, her treatment history and Blue Shield's consequent duty to make further inquiry before issuing coverage. The language of those parts also reinforces plaintiffs' contention that Sally Lawrence believed the balance of the application applied to her only and not to Steve. Those parts also contain evidence that Mr. Shulman was a Blue Shield agent and that he falsely attested that he had asked each question in the application exactly as set forth.

Continue reading "Sacramento Car Accident Victim Also Victimized By Insurance Company's Bad Faith, Part 11 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

Blue Shield's argument that this court should conformist ruling on this motion to a statement of decision recently signed by a Los Angeles County Superior Court Judge in another Blue Shield case is specious. The facts of the two cases are entirely dissimilar. Further, the court in that case did not consider the Court of Appeal's directive that plans must investigate outside the applications before making initial coverage decisions. His statement that the Lawrence decision "does not require a plan to check every statement in every application to determine whether the applicant is lying" entirely misses the mark.

The opinion merely requires plans to make a reasonable inquiry outside the application. Whether a plan did that in a particular case will be a question of fact for the jury. Next, the Los Angeles case is now on appeal. Finally, as explained above and elsewhere in this opposition, the Court of Appeal has determined that the material issues presented in this case are disputed and require trial on their merits. They cannot be resolved on summary judgment.

PLAINTIFFS HAVE DEMONSTRATED THEIR ENTITLEMENT TO A TRIAL ON THE ISSUE OF PUNITIVE DAMAGES.It is clear that Blue Shield conducted business in 2000 just as it had before the enactment of Health and Safety Code section 1389.3. It did not change its underwriting practices in the slightest manner in the nine years preceding the plaintiffs' application.

Continue reading "Court Evaluates Possible Willful Insurance Misrepresentations With Sacramento Accident Victims, Part 10 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

BLUE SHIELD DID NOT COMPLETE ITS MEDICAL UNDERWRITING OR TAKE STEPS TO ANSWER ALL REASONABLE QUESTIONS ARISING FROM THE INFORMATION CONTAINED IN THE APPLICATION BEFORE ISSUING COVERAGE.

Health and Safety Code section 1389.3, enacted in 1991, provides as follows:
No health care service plan shall engage in the practice of postclaims underwriting. For purposes of this section, postclaims underwriting means the rescinding, canceling, or limiting of a plan contract due to the plan's failure to complete medical underwriting and resolve all reasonable questions arising from written information submitted on or with an application before issuing the plan contract. This section shall not limit a plan's remedies upon a showing of willful misrepresentation.

On December 24, 2008, the Court of Appeal issued its decision in plaintiffs' appeal from an earlier order in this case granting defendant's first motion for summary judgment. See Sally Lawrence v. California Physicians' Service, 158 Cal.App.4th 452, 69 Cal.Rptr.3d 789, 2007 Cal.App. LEXIS 2083 [mod. January 22, 2008, with no change of judgment, ___ Cal.App.4th ___ (2008)]. See also plaintiffs' request for judicial notice of the Lawrence opinion filed concurrently with this opposition. In that opinion, the Court of Appeal specifically determined that, with each application, health plans must take reasonable steps and make reasonable inquiries outside the four corners of the application to confirm the accuracy of the information provided before issuing coverage. The rational for the requirement is to prevent the very calamity that has befallen plaintiffs in this case, i.e., the postclaims rescission of a plan contract that would not have been issued initially if the plan had done its medical underwriting and true risk assessment before issuing coverage.

In this case, it is clear that Blue Shield did not complete its medical underwriting before issuing its contract. Defendant's separate statement merely confirms that it did no more than examine its own internal records to see whether plaintiffs had any prior health history with Blue Shield.

Continue reading "Sacramento Couple Fights For Insurance Coverage After Auto Accident, Part 9 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

PLAINTIFFS' OPPOSING SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS DEMONSTRATES THAT DEFENDANTS FACTS ARE DISPUTED AND THAT DEFENDANT'S MOTION MUST THEREFORE BE DENIED.

Plaintiffs' separate statement of undisputed facts has disputed nearly all of defendant's facts, and it has set forth 22 additional undisputed material facts. Even if defendant responds to plaintiffs' additional facts in a reply memorandum, those facts will still require jury resolution.

Plaintiffs have clearly demonstrated that there are triable issues of fact whether Blue Shield complied with Health and Safety Code section 1389.3, as explicated by the Lawrence opinion, before issuing coverage. There are also triable issues (as the Lawrence opinion makes clear) whether Bob Lawrence's signature on the application constituted a willful misrepresentation. And there are triable issues of fact surrounding the nature of Blue Shield's conduct, whether it calculated to eliminate up-front risk and maximize profit by deferring the normal underwriting costs until confronted, post-issuance, with cases in which claims exceed premiums paid. Defendant's experts are expected to testify that that appears to have been the Blue Shield business strategy and policy as evidenced by Blue Shield's underwriting practices and their ambiguous application format, among other things.

Continue reading "Insurance Comapny's Underwriting Errors Cause Serious Issues For Sacramento Couple, Part 8 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED FACTS AND DEFENDANT'S SUPPORTING EVIDENCE ARE IMPROPER AND OBJECTIONABLE ON NUMEROUS GROUNDS AND SHOULD BE STRICKEN.

As plaintiffs demonstrate in their separately filed objections to defendant's evidence offered in support of defendant's undisputed facts, much of defendant's evidence is objectionable hearsay or is offered without foundation, or without a showing of personal knowledge, or violates the best evidence rule. The evidentiary items to which plaintiffs object should be stricken on the grounds stated for each item. Defendant's motion cannot succeed with the paltry unobjectionable evidence that remains, evidence which supports only the most basic notions about the nature of the case. The court should deny defendant's motion because it is not supported by competent evidence.

DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES SHOULD BE DENIED BECAUSE IT FAILS TO IDENTIFY, WITH PARTICULARITY, THE EVIDENCE SUPPORTING EACH ISSUE DEFENDANT WISHES TO HAVE ADJUDICATED IN ITS FAVOR.

Defendant's motion for summary adjudication of issues (Motion at page 34) fails to
identify with any particularity the evidence upon which defendant relies for each of the four issues it desires to have adjudicated in its favor. Rather, for each issue, defendant mechanically incorporates by reference Undisputed Material Facts Nos. 1 through 104 as if fully set forth herein. The rules (not to mention fundamental due process considerations) require that a defendant seeking summary adjudication separately identify each claim, cause of action, affirmative defense or issue of duty and each supporting material fact with respect to said claim, cause of action, affirmative defense or issue of duty in a two column format with citations to exhibits, titles, page numbers and line numbers. See California Rules of Court, rules 3.150(C),(d). Defendant has done none of this.

Continue reading "Sacramento Insurance Company Engaged In Bad Faith With Accident Victim, Part 7 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

THE COURT OF APPEAL'S PUBLISHED DECISION ON PLAINTIFFS' APPEAL FROM THE FIRST GRANT OF SUMMARY JUDGMENT IN THIS CASE AND ITS DETERMINATION THAT THE CASE PRESENTS DISPUTED MATERIAL FACTS THAT CAN ONLY BE RESOLVED BY TRIAL CONSTITUTES LAW OF THE CASE AND BARS A SECOND GRANT OF SUMMARY JUDGMENT IN DEFENDANT'S FAVOR.

In Sally Lawrence v. California Physicians' Service, 158 Cal.App.4th 452, 69 Cal.Rptr.3d 789, 2007 Cal.App. LEXIS 2083 [mod. January 22, 2008, with no change of judgment, ___ Ca.App.4th ___ (2008)], the Court of Appeal stated as follows: We conclude [Health and Safety Code] section 1389.3 precludes a health services plan from rescinding a contract for a material misrepresentation or omission unless the plan can demonstrate (1) the misrepresentation or omission was willful, or (2) it had made reasonable efforts to ensure the subscriber's application was accurate and complete as part of the precontract underwriting process.

Because both of these issues turn on disputed facts, the trial court's summary judgment ruling cannot stand. We also conclude a triable issue of fact exists whether Blue Shield engaged in bad faith, and that the Lawrences adequately alleged a cause of action for intentional infliction of emotional distress. We therefore reverse the judgment. Id., at pp. 459-460.

Defendant's present motion for summary judgment, of necessity, plows the same ground defendant covered in its first motion, i.e., to succeed, the present motion must address the same material issues that were relevant the first time defendant brought its motion. But the Court of Appeal has plainly declared that summary judgment is not appropriate or available in this case because, in its considered opinion, plaintiffs have already demonstrated the existence of disputed facts. Ibid.

Continue reading "Insurance Application Omissions Lead To Suit By Sacramento Accident Victim, Part 6 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

FACTS ESSENTIAL TO JUSTIFY OPPOSITION MAY EXIST BUT CANNOT, FOR REASONS STATED IN THE ACCOMPANYING EXPERT WITNESS DECLARATIONS, NOW BE PRESENTED. DEFENDANT'S MOTION SHOULD THEREFORE BE DENIED OR, ALTERNATIVELY, THE MOTION SHOULD BE CONTINUED TO PERMIT AFFIDAVITS TO BE OBTAINED AND DISCOVERY TO BE HAD.

Code of Civil Procedure section 437c, subdivision (h), provides in pertinent part as follows:
(h) If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or make any other order as may be just. The application to continue the motion to obtain necessary discovery may be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

The decisions make it quite clear that this subsection of the statute is designed to guarantee due process and to ensure that the drastic remedy of summary judgment is not resorted to where, for stated reasons, the party opposing the summary resolution of a case has not been able to obtain the discovery and affidavits that would demonstrate the existence of triable issues of fact. See, e.g., Ambrose v. Michelin North America, Inc., 134 Cal.App.4 th 1350, 1353 (2005); Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30, 34 (2003); Frazee v. Seely, 95 Cal.App.4th 627, 634 (2000); Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 (2001); Vanderbilt v. Superior Court, 105 Cal.App.3d 628, 637 (1980).

Continue reading "Husband And Wife From Sacramento Fight For Accident Coverage, Part 5 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

14. Plaintiff Bob Lawrence sustained disabling injuries in an automobile accident on March 19, 2001.

15. On June 5, 2001, Blue Shield mailed plaintiffs a letter informing them their coverage was cancelled retroactively to December 15, 2000.

16. Before rescinding the contract, Blue Shield had authorized surgery, treatment, care and physical therapy for plaintiff Bob Lawrence's injuries in an amount in excess of $457,000.00.

17. After rescinding the contract, Blue Shield paid for only a small portion of the surgery, treatment, care and physical therapy it had previously authorized for Bob Lawrence.

18. After the rescission the Lawrences were unable to pay the medical bills they had incurred or obtain the surgery, treatment, care and physical therapy which plaintiff Bob Lawrence required because they lacked the money to do so.

19. On December 15, 2000, and thereafter, plaintiffs could have obtained coverage under the health plan offered by plaintiff Sally Lawrence's new employer had they been denied coverage under the Blue Shield plan.

Continue reading "Insurance Company Rescinds Coverage To Sacramento Accident Victim, Part 4 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

STATEMENT OF FACTS

1. Plaintiffs submitted their application for a family health care services contract to Blue Shield in 2000 through insurance agent Kenny Shulman.

2. Blue Shield extended coverage to Sally Lawrence and her family commencing December 15, 2000.

3. Blue Shield conducted no investigation and made no inquiry beyond the application answers into whether the information Sally Lawrence provided on the application was accurate and complete before issuing coverage, and instead performed its risk assessment on the assumption the application contained no errors by assigning values to the risks disclosed.

4. Blue Shield did not make inquiry into the accuracy and completeness of Sally Lawrence's application answers and did not make any inquiry or investigation into the accuracy and completeness of her responses until February 8, 2001, when it referred plaintiffs' contract to its Underwriting Investigation Unit. .

5. The Blue Shield application's agent's certification required Kenny Shulman to ask Sally Lawrence, Bob Lawrence and Sammy Lawrence each question contained in the Blue Shield application, exactly as stated, to ensure that each oral answer was accurately set forth in the written application.

6. Kenny Shulman did not ask Sally Lawrence, Bob Lawrence and Sammy Lawrence each question contained in the Blue Shield application, exactly as stated, to ensure that each oral answer was accurately set forth in the written application.

7. Plaintiffs' Second Amended Complaint contains causes of action for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing and Intentional Infliction of Emotional Distress.

8. The California Court of Appeal, Fourth District, Division Three, determined that the three causes of action set forth in Plaintiffs' Second Amended Complaint are viable.

Continue reading "Sacramento Insurance Company Mistakes Injure Couple, Part 3 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

Plaintiffs' complaint against Blue Shield contains causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing and intentional infliction of emotional distress. Plaintiffs' primary contention is that Blue Shield engaged in prohibited post claims underwriting in violation of Health and Safety Code section 1389.5 when it waited s until after claims had been filed to look beyond the four comers of the application's answers to ascertain whether the answers Sally Lawrence provided were accurate and complete.

The trial court sustained Blue Shield's demurrers to plaintiffs' complaint and granted summary judgment. On appeal, the Fourth District Court of Appeal determined that the complaint's causes of action were viable and that Blue Shield was obliged to complete its medical underwriting and resolve all reasonable questions arising from the written application before issuing coverage. The court specifically determined that medical underwriting requires health care service providers to do more than simply assign values to the risks disclosed on the application. They must make reasonable efforts in every case to make inquiries outside the application and to answer all reasonable questions arising from the information provided on the application to make sure that a potential subscriber's application is accurate and complete. Blue Shield did not do any of that in this case, and plaintiffs sustained significant injury and damage as a consequence of that failure.

Continue reading "Sacramento Auto Accident Results In Insurance Lawsuit, Part 2 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

Plaintiffs' Opposition to Defendant's Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION
Blue Shield offered health care coverage to plaintiffs based on an on-line application which Blue Shield's insurance agent, Kenny Shulman, prepared and forwarded to Blue Shield after plaintiff Sally Lawrence delivered her paper application for individual family coverage to Mr. Shulman. Sally Lawrence understood that the application asked for only her health history, and she provided it. Had Blue Shield's paper application been clearer and less ambiguous, or had Mr. Shulman asked plaintiffs each question on the paper application as the application's certification section required, the on-line application which Mr. Shulman prepared and sent to Blue Shield would have been amended to include the health histories of Bob Lawrence and their son, Sammy Lawrence, and to accurately reflect the history and status of Sally Lawrence's irritable bowel disclosure.

Significantly, Blue Shield issued coverage (effective December 15, 2000) based on Mr. Shulman's incomplete and inaccurate on-line application. Had Mr. Shulman performed his duty, Blue Shield would likely have denied coverage, in which case plaintiffs would have obtained other coverage which would have been in effect on the date of Mr. Lawrence's March 19, 2001, automobile accident.

Continue reading "Insurance Company Denies Coverage To Sacramento Couple, Part 1 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

Starting with what plaintiff would have earned if not injured in the automobile collision and subtracting what she is able to earn now that she is partially disabled, the future lost income submitted to the jury was $347,352.00.

It was also established that because of plaintiff's partial disability, her ability to contribute household services was diminished by 8 hours a week. Projecting forward to age 65, Mr. Stevens testified that the economic value for the loss of those services was $220,064.00.

It is noteworthy that although defendant complains that the award of economic damages was excessive, her motion for a new trial is conspicuous by its failure to assert that plaintiff's expert analysis of economic loss was incorrect, no less any suggestion as to why that might be so. Simply because Dr. W. could find no medical reason why plaintiff was unable to work for the amount of time she claimed is no reason to set aside the jury's conclusion that plaintiff's witness had established such a medical reason for a past wage loss and future economic losses.

The Court Should Not Remit the Award of Damages

Clearly, the defendant is not happy with the jury's verdict and award of damages. A party's disappointment with the trial result is no reason for a court to issue a remittitur. Defendant makes no claim that the jury was improperly instructed, that evidence was improperly admitted, or that the jurors engaged in misconduct. Rather, defendant asserts because that a properly instructed jury that heard properly admitted evidence and, upon due deliberation, awarded substantial damages, the court should remit the award because defendant presented evidence at odds with the jury's resolution of this case. The contention is lacks merit and should be rejected. The motion for new trial should be denied.

Continue reading "Woman's Future Earnings Limited Due To Sacramento Auto Accident, Part 5 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

The Award of Damages was Not Excessive

Plaintiff's medical bills totaled $24,194.89. In her motion for a new trial, defendant does not contend those expenses were unreasonably incurred.

Although Dr. W. testified that, in his opinion, there was no reason why plaintiff was unable to work for the time she claimed to have been off work as a result of this accident, plaintiff presented extensive and essentially uncontroverted expert testimony that both explained and justified her absence from work and her future economic and non-economic damages.

Dr. Y., who had evaluated the plaintiff a week prior to the trial, concluded that plaintiff's condition had deteriorated since her last therapy treatment, that she needed therapy to strengthen her muscle and tissues around her neck, and that she would require careful monitoring and therapy for the remainder of her life. More specifically, she testified that it was reasonably certain that, during the next 3 to 6 months, plaintiff would require three to four osteopathic treatments a month at a cost of $1,920.

Dr. Y. projected that for the following 3 months, plaintiff would require two treatments per month at a monthly cost of $960.00 for a total of $2,880.00. She would also need physical therapy four times per month for 1.5 months, at $120.00 per visit, and then two times per month for a total cost of $3,960.00.

Continue reading "Defendant In Sacramento Motor Vehicle Collision Challeges Jury Award For Victim, Part 4 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

There Was Ample Evidence that Plaintiff was Seriously Injured in the Accident

Plaintiff presented as a woman who had no problems with her neck prior to being struck from behind by defendant. Both treating physicians, Dr. X. and Dr. Y. testified that the accident caused the injury to plaintiff's neck, a disc bulge in her C5 region. Dr. Z., a board certified neurologist, testified that plaintiff's injury was consistent with having been caused by a rear end accident. Not surprisingly, the defense produced an expert, Dr. W., who disputed those findings. Like a murder defendant who tells the jury that he didn't do it but if he did, it was in self-defense,

Dr. W. opined that plaintiff was not hurt in the accident, but if she was, it was minor. His credibility was quickly undermined, however, when he initially testified that plaintiff's post-accident ability to swim and snorkel at the time of the IME was evidence that she was not injured and then was later forced to concede that she had really quit swimming (although recommended by her treating doctor) a year earlier prior to the IME because of a severe allergic reaction to plaintiff's eye from the chlorine in the pool.

The jury heard both plaintiff's treating physicians and board certified neurologist testify and they heard Dr. W.'s testimony and found plaintiff's witnesses to be more persuasive. In her motion, defendant presents no reasoned analysis of any deficiencies in the testimony of plaintiff's witnesses.

Continue reading "Plaintiff's Medical Experts Confirm Sacramento Accident Victim's Injuries, Part 3 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

It is noteworthy that the defendant did not produce any eye witnesses to dispute Ms. Diaz's observations. The best that the defendant could say was that she wasn't sure if she braked and that she didn't remember hearing the screeching of tires that typically accompanies sudden braking. Not surprisingly, there was no evidence that the were any skid marks left by the defendant's tires.

Simply because no ambulance was called to the scene and Ms. Hayes drove herself home does not establish, as defendant seems to think it does, that this was a minor accident. It is not an uncommon event for several hours or more to pass before pain from the accident caused injury manifests itself. Moreover, in her motion defendant neglects to mention that her car was totaled, with more than $9,600.00 in damages. The force of the impact was so great that plaintiff's solid steel trailer hitch, which was bolted to the frame of the van, was cracked and pushed into the rear of the van sealing the rear door shut.

Defendant asserts that Dr. Kelkar's unrebutted biomechanical accident reconstruction testimony established that plaintiff could not have been injured as she claimed. No trier of fact is required to accept expert testimony as gospel, even if unrebutted. (In re Marriage of Duncan (2001) 90 Cal. App. 4th 617.) [A]s a general rule, provided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.] [Citation.] This rule is applied equally to expert witnesses. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890.)

Continue reading "Eyewitness To Sacramento Auto Accident Helps Victim, Part 2 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

Plaintiff's Opposition to Defendant's Motion for a New Trial
The Court Should Not Grant a New Trial Because the Jury's Verdict is Amply Supported by the Evidence

Motion for a New Trial Should Not be Granted Unless the Court is Convinced that the Jury Clearly Should Have Reached a Different Verdict

Code of Civil Procedure §657 provides, in pertinent part, that a trial court should not grant a motion for a new trial on the grounds of insufficiency of the evidence, "unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the... jury clearly should have reached a different verdict or decision." In other words, while a trial court has wide discretion in ruling on a motion for a new trial, the use of the word clearly in §657 makes it evident that such a motion should not be granted unless the trial court is firmly convinced that the jury got it wrong. Simply put, there is no basis for such a finding in this case.

This was No Minor Accident

Citing her own motion, defendant complains that the jury verdict should be set aside because this was a minor accident, making it seem like a fender bender. Not so. Defendant seems to have forgotten, or at least forgotten to discuss, that there was an independent witness, Ms. Vilma Diaz, who had no prior relationship with either party, who witnessed the entire automobile accident unfold in front of her.

Continue reading "Sacramento Auto Accident Results In Serious Injuries, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

LEGAL ISSUES cont.

The defendant, if he was negligent, is solely responsible for the initial injury; liability for the defendant's enhanced or aggravated injury is properly apportioned between the plaintiff the defendant and subsequent healthcare providers in accordance with the rules of comparative fault and Civil Code § 1431.2.

A second legal issue is evidence of the financial interest of the plaintiff's expert witnesses, including their fee arrangements with plaintiff's counsel. The defendant will provide evidence of financial ties between plaintiff's physicians and attorney to demonstrate an ongoing business relationship between plaintiff's physicians and attorney.

A witness may be examined on the issue of possible bias, which includes a financial interest in the case. (See: People v. Mickle (1991)54 Cal.3d 140, 168; People v. Munoz(1984) 157 Cal.App. 3d 999, 1010.) Evidence Code § 780(f) allows for the interrogation or questioning of a witness to determine the credibility of a witness, including the existence or nonexistence of a bias, interest or motive. Whether a treating doctor has a lien in the matter is indicative not only of his pecuniary interest in the case but goes to the issue of credibility and bias and the jury is entitled to know of such financial interest. If the plaintiff loses, the doctor does not get paid.

Continue reading "Automobile Accident Forces Sacramento Victim To Battle Defense Medical Experts, Part 5 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

LIABILITY
Paul Austin does not concede liability, and at trial he will provide evidence in support of all available affirmative defenses. California is a comparative negligence state and Ms. Smith had a duty to take reasonable care to prevent harm to herself. This is especially true on what was a day of heavy rain and where the intersection lights were not operating at a major intersection. Ms. Smith was in a comfortable zone just three blocks from her residence. Whether Ms. Smith was appropriately attentive to the road conditions is for a trier of fact to determine. Mr. Austin contends he is liable only for a reasonable comparative portion of the damages reasonably caused by the accident.
LEGAL ISSUES
The primary legal issue in this matter is that plaintiff's injury did not result in the need for surgery. The defendant will present evidence that surgery was unnecessary and the surgical procedures that were performed were below the applicable standard of care. Therefore, any medical conditions caused by plaintiff's surgeries were not proximately caused by the accident.

This case involves distinct and divisible injuries. Plaintiff suffered a soft tissue injury that would have healed with conservative treatment. Instead, she sought treatment with Dr. John Lee, a neurosurgeon, whose negligent subsequent medical care served only to aggravate the plaintiff's symptoms. As a subsequent tortfeasor, and because California is a comparative negligence state, Dr. Lee, as with any other subsequently treating negligent healthcare provider, is liable to the plaintiff for the enhanced injuries that he has caused. (See: Henry v. Superior Court (2008) 160 Cal.App.4th 440.) As such, if he is liable, the defendant is entitled to a determination by the trier of fact to an apportionment of any liability. (Id.; Civil Code § 1431.2.) CACI Jury Instruction 406 reads in pertinent part:

Continue reading "Sacramento Accident Victim Fights Defendant Over Back Treatment, Part 4 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

STATEMENT OF FACTS cont.

Dr. Lee then, on November 17, 2007, performed his experimental provocative
cervical discogram C5-6 and microdecompressive cervical discectomy C5-6 pronouncing
it a success. He then proceeded - is the very same surgery - to perform a provocative
lumbar discogram and microdecompression lumbar discectomy of L5-S 1 under magnification. It absolutely contradicts accepted medical protocol to perform both a cervical discectomy
and a lumbar discectomy at the same time. The impact on the human body is considered to
be too traumatic. Proper and accepted medical procedure would be to perform the
cervical procedure first because the neck has a tendency to heal more quickly. Then,
only if appropriate, perform a lumbar discectomy no sooner than at least one month after
the cervical surgery - at the earliest.

One obvious drawback of Dr. Lee's style is that he nicked a nerve during Ms. Smith's experimental lumbar surgery that not only caused her to have a spinal migraine that caused her to return three days later for a blood patch to remedy her unnecessary pain, but also Ms. Smith left treatment with Dr. Lee with severe pain radiating into her left leg that never before had existed. Not only was Dr. Lee's surgery poorly diagnosed, unnecessary and unrelated to the accident, but it also caused Ms. Smith a later second lumbar surgery by another neurosurgeon to redo the discectomy by Dr. Lee.

Continue reading "Plaintiff In Sacramento Car Accident Undergoes Multiple Back Surgeries, Part 3 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

STATEMENT OF FACTS cont.

A cervical MRI was conducted on August 4, 2007, by Tower Imaging
Center which showed that her cervical spine was normal except for a combination of
spurring and a 2 mm left paracentral disc protrusion slightly indenting the anterior cord
and causing mild left-sided canal narrowing at C5-6. There was no neural foraminal
narrowing. At C6-7, the MRI showed mild degenerative disc disease with a small posterior
spur with mild spinal stenosis. There was no neural foraminal narrowing.

On that same date, the Tower Imaging Center also performed an MRI of
Ms. Smith’s lumbar spine which showed no disc protrusion or extrusion, spinal stenosis,
or neural foraminal narrowing at any lumber spine level. There was a mild disc dessication
at L5-SI.

On August 8, 2007, Dr. Davies prescribed a course of pain management. Ms. Smith
was referred to Peter Day, M.D. at the Interval Pain Management Group. After
evaluation, Ms. Smith was treated with a cervical epidural steroid injection on September
15, 2007 and another on October 13, 2007. After both treatments, she reported temporary
relief. On September 5, 2007, she presented to Jerry James, P.A. at Conservative
Care Medical Group. Ms. Smith also began the extended use of Skelaxin, Celebrex and Tramadol that, with the addition of other prescribed medications, continues until today. Ms.
Smith's accident-related injuries were healing and would have healed under the
conservative treatment she was receiving.

Continue reading "Auto Accident in Sacramento Leaves Woman With Back Injury, Part 2 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

DEFENDANT’S TRIAL BRIEF

STATEMENT OF FACTS

This action arises from an automobile versus SUV accident. On January 2, 2007, Melissa
Smith was traveling eastbound on Arden in her SUV. Paul Austin was
traveling northbound on Eastern in his passenger car. There was a heavy rain and
the traffic-control lights at the intersection were not working. Temporary four-way stop
signs had not been deployed. Ms. Smith proceeded to enter the intersection. Mr. Austin
was northbound on Eastern traveling at approximately 25 mph. He saw no traffic and
continued to proceed into the intersection. Neither driver saw the other vehicle until
immediately before impact. Despite braking, Mr. Austin's car struck the plaintiff's SUV
in the passenger-side doors approximately in the middle of the vehicle.

Ms. Smith immediately jumped out of her vehicle and began yelling at Mr. Austin.
Neither party received a citation. Neither party received emergency medical treatment. Ms.
Smith proceeded to drive her vehicle to her nearby residence approximately three blocks
away. Two days later Ms. Smith presented to David Stein, D.C. for evaluation and
chiropractic treatment for seven months.

Continue reading "Sacramento Car Accident Victim Fights Comparative Negligence, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

DAMAGES

Plaintiff claims to have sustained a head laceration requiring several stitches and an injury to his right AC shoulder joint for which he claims he underwent surgery almost two years post-accident on August 8, 2007. Plaintiff has incurred the following medical specials:

- Sacramento Orthopedics & Medical Group $10,985.00

- Roseville Center for Arthroscopic and
Outpatient Surgery $15,120.67

- Roseville Orthopedic Medical Group $1,040.00

- Roseville Fidelity Medical Group $4,405.00

- Roseville Fidelity Medical Group $9.00

- Central Diagnostic Imaging $2,200.00

Based on the foregoing, plaintiff has incurred $33,759.67 in medical specials.

Also, plaintiff claims his bicycle was totaled after the accident. In response to written discovery, he stated he purchased the bicycle for $130.00, however, at deposition he stated he paid $80.00 or $90.00 for the bike. He also claims he missed four days of work and lost $865.00 in earnings.

Continue reading "Sacramento Car Driver Injures Bicyclist In Collision, Part 3 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

LIABILITY CONTENTIONS

XYZ contends that Plaintiff was the sole cause of this accident.

A bicyclist is subject to all of the same provisions applicable to the driver of a vehicle except for obvious exceptions. Vehicle Code section 21200 (a).

When not otherwise prohibited by the Vehicle Code or local ordinance, bicycles may be ridden on the shoulder of a highway but whether they are operated on the roadway or the shoulder they must travel in the same direction as vehicles. Vehicle Code section 21650.1. A person riding a bicycle on a roadway at a speed less than the normal speed of traffic must keep as near the right side of the curb or edge of the roadway as possible, Vehicle Code section 21202 (a), except when reasonably necessary to avoid conditions that make it unsafe to continue along the right curb or edge. Vehicle Code section 21202(a)(3) [ No person shall ride, operate or use a bicycle, ... on a sidewalk, bikeway or boardwalk in a willful or wanton disregard for the safety of persons or property. ].

In this case, Plaintiff admitted, at deposition, that it was his normal custom and practice to ride his with the flow of traffic. However, he would usually ride on the sidewalk. Yet, on this particular occasion, he chose to ride his bicycle on the north side of the street, in a westerly direction against the flow of eastbound traffic. Certainly, this was a willful decision by the plaintiff to disobey the rules of the road. As such, XYZ contends that plaintiff's willful decision(s) constitutes negligence per se.

Continue reading "Insurance Company Blames Sacramento Bicyclist For Car Accident, Part 2 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

Trial Brief of Defendant-in-Intervention, XYZ Insurance Company

ESTIMATED LENGTH OF TRIAL
Two to three days.

STATUS OF PLEADINGS
This case arises out of an auto versus bicycle accident that occurred at approximately 3:20 a.m. on October 21, 2005, at the intersection of 42nd Street and J Street, in the City of Sacramento.

Defendant, JANE LEE, was driving her 1998 Mercedes-Benz C230 eastbound on 42nd Street and preparing to make a right turn onto J Street. Plaintiff, JOHN SMITH, was riding a bicycle from the opposite direction on the sidewalk of 42nd Street. Plaintiff SMITH rode his bicycle on the sidewalk and across J Street and then directly into the vehicle driven by JANE LEE as Ms. LEE was making her right turn.

Plaintiff, JOHN SMITH, claims that defendant, JANE LEE, negligently operated her vehicle to cause the subject accident and resulted in Mr. Smith's alleged injuries and damages. Defendant, BOB LEE, is the husband of defendant, JANE LEE. Mr. Lee was the registered owner of the vehicle and has been sued accordingly.

Continue reading "Sacramento Bicyclist Struck By Automobile, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

SECOND CAUSE OF ACTION cont.

33. The acts of Defendants as alleged herein and above was intended to cause injury to Plaintiffs in that Defendants arbitrarily adjusted the claim in an amount less than what the Policy allowed for without any basis for doing so and without any investigation thereon. Defendants' conduct in this regard was carried on with a conscious disregard of the rights of Plaintiffs.

34. As a direct and proximate result of said unlawful conduct of Defendants, Plaintiffs have suffered and will continue to suffer economic and non-economic damages including, but not limited to, substantial losses of past and future earnings, bonuses, other compensation, and other employment, and unemployment, benefits and job opportunities, plus expenses in an amount according to proof at time of trial.

35. As a direct and proximate result of said unlawful conduct of Defendants, Plaintiffs have suffered, and continue to suffer, mental and emotional distress, including but not limited to, frustration, depression, nervousness and anxiety, and have thereby incurred general damages in a sum in excess of the jurisdiction of this Court, all in an amount according to proof time of trial.

36. As a further direct and proximate result of Defendants' breach of the duty of good faith and fair dealing, Plaintiffs have suffered special, as well as, other damages, in a sum in excess of the jurisdiction of this Court, plus interest, including prejudgment interest, all in an amount according to proof at time of trial.

Continue reading "Breach Of Contract By Sacramento Automobile Insurance Company, Part 6 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

SECOND CAUSE OF ACTION
Breach of Implied Covenant of Good Faith and Fair Dealing
(Plaintiffs against Defendants XYZ and DOES 1-20)

29. Plaintiffs incorporate by reference each and every allegation of this Complaint as though fully set forth in this cause of action.

30. At all times relevant herein, Defendants, and each of them, agreed to act in good faith and deal fairly with Plaintiffs in all matters related to the Policy, and insurance claims arising from losses covered thereunder, including the uninsured motorist and medical expense claims.

31. Said Defendants assumed a special relationship with, and fiduciary obligations to, and agreed to abide by the duties commensurate with these obligations. Nevertheless, Defendants refused and failed to act in good faith and deal fairly with Plaintiffs, and breached said obligations, as set forth more particularly herein.

32. Defendants engaged and continue to engage in an unreasonable course of conduct to further their own economic interests in violation of their contractual and fiduciary obligation to Plaintiffs, including but not limited to:

a) Unreasonable and bad faith failure to make a full and fair settlement of Plaintiffs' medical expense claims;

b) Unreasonable delay and/or denial of payment of policy benefits without proper cause;

Continue reading "Suit Filed For Failure To Pay Sacramento Insureds For Accident With Uninsured Motorist, Part 5 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

FIRST CAUSE OF ACTION
Breach of Contract
(Plaintiffs against Defendants XYZ and DOES 1-20)

23. Plaintiffs incorporate by reference each and every allegation of this Complaint as though fully set forth in this cause of action.

24. On or about December 16, 2008, Plaintiffs made a claim for insurance benefits under the Policy, for personal injuries sustained as a result of the automobile accident described in this Complaint.

25. Under the Policy, Defendant owed duties and obligations to Plaintiffs, including but not limited to, payment of claims for insurance benefits covered under the Policy.

26. Defendant has unreasonably denied and/or delayed settlement and payment of Plaintiffs' rightfully demanded claims. In failing and refusing to provide the benefits under the Policy, Defendant has breached the terms and provisions of the Policy.

27. Plaintiffs have performed all of the terms and conditions of the Policy and have performed all obligations under said Policy, and are rightfully owed their benefits under the Policy.

Continue reading "Automobile Insurance Company In Sacramento Sued For Bad Faith And Unfair Dealing, Part 4 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

BRIEF FACT SUMMARY cont.

16. On or about April 13, 2009, Plaintiffs again requested an explanation for Defendant's denial and unreasonable delay in settling Plaintiffs' claims. At the same time, Plaintiffs submitted a demand for arbitration.

17. On April 30, 2009, Defendant sent a response to Plaintiffs' April 13, 2009 demand, by making an unreasonably low settlement offer. Defendant then represented that the matter would be sent to Defendant's counsel to consider Plaintiffs' demand for arbitration, and said counsel would contact Plaintiffs shortly.

18. Subsequently, Plaintiffs relied on Defendant's representations that the matter would be reviewed by its counsel, and communicated to Defendant that they considered compelling arbitration, but would wait for further communication from Defendant.

19. However, on May 13, 2009, Defendant again corresponded with Plaintiffs, not by way of counsel, but only to communicate that a new claims representative was assigned to handle Plaintiffs claim. Instead of forwarding the matter to counsel as Defendant represented, it merely assigned a new representative to the matter.

Continue reading "Sacramento Plaintiffs File Action Against Insurance Company Regarding Uninsured Motorist Coverage, Part 3 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

BRIEF FACTUAL SUMMARY
Plaintiffs are informed, believe and thereon allege the following facts:

8. On or about June 19, 2007, Plaintiff Anna A. and Defendant XYZ entered into a written contract of motor vehicle bodily liability insurance which included provisions for bodily injury damages incurred by uninsured motorists. Said contract is titled Interinsurance Exchange of the XYZ Insurance Company Policy (hereinafter the "Policy" ).

9. Pursuant to Insurance Code §11580.2(b), as well as the Policy, each and every Plaintiff is an insured and entitled to benefits under the Policy.

10. The Policy provided coverage for a 2004 BMW 328i (hereinafter "Vehicle" ), and provided for uninsured motorist in the amount of $30,000 perperson, $60,000 each occurrence, with medical payment benefits of $5,000 per person.

11. On or about September 3, 2007, Plaintiffs were involved in an automobile accident due to the fault of an uninsured motorist. Each and every Plaintiff suffered bodily injury as a result of the accident. Consequently, Plaintiffs began medical treatment.

Continue reading "Bad Faith Insurance Claim By Injured Sacramento Motorists, Part 2 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

Complaint for Damages: 1) Breach of Contract; and 2) Breach of Implied Covenant of Good Faith and Fair Dealing
GENERAL ALLEGATIONS
1. Plaintiff ANNA A. (hereinafter "Anna" ) is, and at all times mentioned herein, was an individual and a resident of the County of Sacramento, State of California.

2. Plaintiff SUZY B. (hereinafter "Suzy" ) is, and at all times herein, was an individual and a resident of the County of Sacramento, State of California, and is one of Anna's daughters.

3. Plaintiff VICKIE C. (hereinafter "Vickie" ) is, and at all times mentioned herein, was an individual and a resident of the County of Sacramento, State of California. Vickie is also a daughter of Anna. Unless specifically referred to by name, each of the above mentioned plaintiffs will be collectively referred to herein as Plaintiffs.

Continue reading "Sacramento Family Sues Auto Insurance Company, Part 1 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Mr. Sunderland sued both Mr. Mazloom and his employer, Lockheed. The appellate court
held Mr. Sunderland was in the course and scope of his employment, noting the following:

1. Mr. Mazloom drove his own vehicle.
2. Lockheed did not pay Mr. Mazloom a mileage allowance while he worked in Lancaster.
3. Mr. Mazloom had already cleared out his office. Thus, his work for Lockheed was finished.
4. Mr. Mazloom made the trip to the fast food restaurant to get food. Thus, it was not a trip that had a mix of personal and business purposes.
5. The trip to In-N-Out Burger had no benefit to Lockheed.
6. Finally, the Court noted that Lockheed had “no control over Mazloom’s choice of
transportation generally, or over his movements at the time he collided with plaintiff’s
vehicle.”

The facts in the present case of Gibbs v.ABC, are critically different and thus require a different
result from the one reached in Sunderland.

1. Unlike Sunderland, Ms. Smythe’s vehicle was provided and paid for by her employer, ABC.
2. Unlike Sunderland, ABC paid for Ms. Smythe’s travel expenses.
3. Unlike Sunderland, Ms. Smythe was in the middle of a multi-day business trip for the benefit of ABC. Mr. Mazloom had already “cleared out his office,” whereas Ms. Smythe was expected by her boss to continue working for ABC in California the day following her collision with plaintiff John Gibbs.

Continue reading "Folsom Resident Paralyzed After Automobile Collision, Part 14 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Further, personal acts that are “necessary to the comfort, convenience, health, and welfare of the employee while at work” are minor deviations and do not take the employee out of the course and scope of employment. O’Connor v. McDonald’s Restaurants (1990) 220 Cal. App. 3d 25, 30.
For example, in Lazar v. Thermal Equipment (1983) 148 Cal. App. 3d 458, 466-467, the court held that an employee’s decision to stop at a grocery store on the way home from work, even though the store was in the opposite direction than his normal route home, did not remove him from the course and scope of his employment. The court further held the detour was foreseeable because the employee was using a company vehicle to complete his work.
The Lazar court went on to say:

It is the established rule in this jurisdiction that where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when the third person was injured…” (Lazar, supra, at pp. 467-468.)

IV. DEFENDANT'S RELIANCE ON SUNDERLAND v. LOCKHEED IS MISPLACED

In its argument that Nancy Smythe was not in the scope of her employment with
ABC at the time of the collision, defendant relies exclusively on the decision of Sunderland v.
Lockheed (2005) 130 CA4th 1. Defendant’s reliance on Sunderland, supra, is misplaced, and
is easily distinguished from the case at bar.

Continue reading "Injured Sacramento-area Driver Files Suit Against Defendant's Employer, Part 13 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

First it should be noted that the application, evaluation and weighing of these factors cannot possibly be conducted without the court making factual determinations and weighing evidence, a process incompatible with summary adjudication.

In O’Connor v. McDonald’s Restaurant, supra, 220 Cal.App.3d 25 plaintiff was injured in a motor vehicle accident caused by a McDonald’s employee. The employee had voluntarily returned to the restaurant one evening from 8:00 p.m. until 1:00 or 2:00 a.m. in order to do extra cleaning and preparation for a “spring blitz” competition. The employee voluntarily contributed his extra time with a goal of receiving a promotion. He then traveled from McDonald’s to a co-workers house where he socialized until about 6:30 a.m. The accident occurred when he was traveling from the co-worker’s house to his own house. The trial court granted summary judgment in favor of McDonald’s, finding that he was on a special errand for McDonald’s when he voluntarily reported for cleanup duties, but that the stop at the co-worker’s house was a “complete departure” from the special errand and McDonald’s responsibility for his driving therefore terminated before the accident occurred. The court of appeal disagreed, and after applying the factors set forth in Felix v. Asai, concluded that there was a triable issue of material facts as to whether the trip to the co-worker’s house constituted a complete departure from the special errand. O’Connor v. McDonald’s Restaurants of California, Inc. Supra, 220 Cal.App.3d at 33-34.

In applying the factors set forth by the court in Felix v. Asai, the inescapable conclusion is that there is a clear nexus between Smythe’s arrival at the site of the accident and her work for ABC.

Continue reading "Bay Area Automobile Accident Catastrophically Injures Folsom Man, Part 12 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Where the employee “is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when a third person was injured.” Miller v. Stouffer (1992) 9 Cal.App.4th 70, 78. “If the main purpose of his activity is still the employer’s business, it does not cease to be within the scope of the employment by reason of incidental personal acts, slight delays, or deflections from the most direct route. State Farm Mut. Auto. Ins. Co. V. Haight (1988) 205 Cal,App.3d 223, 243. Under such circumstances, the employer will face respondent superior liability “unless it clearly appears that the servant could not have been directly or indirectly serving his master.” Miller v. Stouffer, supra, 9 Cal.App.4th at 78 citing Loper v. Morrison (1944) 23 Cal.2d 600, 606.

Even if not motivated by a desire to serve the employer, conduct is nevertheless within the course and scope of employment if there is a sufficient causal nexus between the conduct at issue and the employment. Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298. A sufficient causal nexus exists where the conduct at issue is “generated by or an outgrowth of work place responsibilities, conditions or events.” Id. at 302.

Continue reading "Folsom Driver Now Quadriplegic After Car Accident, Part 11 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

6. ABC had the Right to Terminate Smythe at Will
One of the most critical factors has been determined to be the right of the employer to end the service of the employee whenever he sees fit. Press Pub Co. supra, 190 Cal. at 120. Here, there is no doubt that Chan had the authority to terminate Smythe at will. (See Fact No. 14)
Each and every factor outlined in the Restatement 2d of Agency dictates a conclusion that the true relationship between Smythe and ABC from April 2006 through and including the date of the accident at issue here, was one of employer/employee and not one of independent contractor. Because of the financial status of the company, a unique agreement was arrived at between Smythe and Chan, and Smythe was not placed on payroll. Nonetheless, the fact that she was engaged full-time, that she was charged with a wide variety of tasks and duties for the benefit of the company rather than hired for a specific project, the fact that Chan could and did dictate what she was to do and how she was to do it, and the fact that ABC provided her with all instrumentalities necessary for doing the work and, perhaps most importantly, that ABC held her out as president and COO all constitute traits of an employer-employee relationship and not one of independent contractor.
3. SMYTHE WAS IN THE COURSE AND SCOPE OF HER EMPLOYMENT AT THE TIME OF THE ACCIDENT

An employer is vicariously liable for the tortious conduct of its employees committed while the employee is in the course and scope of his or her employment. Rodgers v. Kemper Construction Company (1975) 50 Cal.App.3d 608, 617. The policy is based on an economic rational, with the goal being to place the cost of losses caused by the torts of employees that occur within the conduct of the employer’s enterprise upon the business itself, as a required cost of doing business. Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 959-960.

Continue reading "Tragic Car Accident Leaves Sacramento-area Man Paralyzed, Part 10 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

5. The Parties were Operating as Employer/Employee

One of the factors to be evaluated is how the parties saw the nature of the relationship between them. Smythe had no doubt that she was an employee of ABC. The employment of 2006 was substantially the same as the previous employment between 2000 and 2002. (See Fact No. 5) In her opinion, Chan was her immediate superior who could dictate her activities, and if Smythe disobeyed Chan it would constitute insubordination and subject her to termination. (See Fact Nos. 6, 13, 14, 15, 16) She was working full-time (See Fact No. 25, 29) and during both periods of employment had a company credit card, company office, cell phone, laptop, email account and voicemail. (See Fact No. 27) She had transitioned into a long term, full-time position as President and COO, and she was held out as such by Chan. (See Fact No. 20, 21, 25) Certainly in Smythe’s mind she was a long term employee of ABC. (See Fact No. 24, 25)

Although Chan does not describe Smythe as an employee, she admits that Smythe was introduced as President (See Fact No. 20, 21), directed the work of others (See Fact No. 19) and had a role in hiring, firing, and expending corporate funds. (See Fact No. 31)

Continue reading "Folsom Man Sues Company For Catastrophic Auto Injuries, Part 9 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

While it certainly may be true that outside consultants are sometimes hired on a project basis to fill a particular role that the company cannot fill in-house or to provide short-term outside consulting services, such is not the case with the employment of Smythe. As discussed below, she was working full-time for ABC and had no other clients. (See Fact No. 29) She was dedicating her full time efforts to advancing the objectives of the company. She was being held out to customers, potential customers and employees as the president of the company and was filling that role. She was involved in organizational efforts, setting and directing the objectives of the company, assisting with marketing and representing the company at conferences. This is not the traditional role of a consultant, and, in fact, it would be highly unorthodox for a company president to be an outside consultant. Rather than reflecting a true intent to retain Smythe as an independent contractor, the situation she was in with Smythe at the time of the accident was arrived at solely due to economic concerns and a desire to find a structure that would be economically best for both parties. (See Fact No. 26) Where all indicia are to the contrary, the court should, and must, ignore the “Independent Contractor” label assigned by the parties. Toyota, supra, 220 Cal.App.3d at 877.
3. ABC Supplies All Instrumentalities
At the time of the accident giving rise to this action, ABC was being supplied with all instrumentalities necessary to carry on her work for the benefit of ABC, including an office, an email account, a cell phone, voicemail, a computer and a company credit card. (See Fact No. 27) In addition, when she attended the conference in northern California, her expenses were paid by ABC, which provided him with a rental car, corporate housing and a local office in which to work. (See Fact No. 28)
Again, contrary to what would be expected with an independent consultant, ABC provided Smythe everything it would provide any other traditional employee to carry on the work of the company.

Continue reading "Employee At Marin Conference Injures Sacramento-area Man, Part 8 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

2. Type of Business and SMYTHE’s Role in the Business
The Restatement (2d) sets forth several factors with overlapping analyses under the present facts, including (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (h) whether or not the work is part of the regular business of the employer; and (j) whether the principal is or is not in business. Therefore, these will be addressed together.

ABC is a business which provides manufacturing and software solutions for a variety of industries. It employs programmers to develop software. (See Fact No. 17) The organizational structure had a Board of Directors at the top, followed by Victoria Chan, the CEO, followed by Smythe, who was the “acting” president. (See Fact No. 18) Smythe and four others reported to Chan. (See Fact No. 19) Smythe also had authority over four other employees in the company. (See Fact No. 19)

Smythe was given the title of president and was authorized to introduce herself to others as president. (See Fact No.20) Victoria Chan introduced Smythe to customers, potential customers and employees as the president of the company. (See Fact No. 21) Business cards that were in the process of being ordered at the time of the accident, but were never printed, identified Smyhte as the President and Chief Operating Officer. (See Fact No. 22)

Continue reading "Employer Liable For Car Accident Injuring Folsom Man, Part 7 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The employer’s control is the most important factor, and the others are to be considered “secondary elements.” Toyota, supra, 220 Cal.App.3d at 875; Isenberg v. California Emp. Stab. Com., (1947) 30 Cal.2d 34, 39. “Moreover, it is not the control actually exercised, but that which may be exercised which is determinative.” Toyota, supra, 220 Cal.App.3d at 875.
In applying the factors to the evidence of Ms. Smythe’s employment status, the inescapable conclusion is that she was operating as an employee rather than an independent contractor at the time of the accident that injured plaintiff John Gibbs.
1. Employer Right of Control
Smythe had worked at ABC previously as an employee between January 2000 and July 2002. (See Fact No. 1) She returned to work ABC at in April 2007, and was terminated in July 2007. (See Fact No. 2) During the initial period of employment between 2000 and 2002, she reported directly to CEO Victoria Chan until the end of that period, when David Grillo took over. (See Fact No. 3) Victoria Chan controlled and directed her work for that two-and-half-year period. (See Fact No. 4) Upon her return to the company in April 2007, her relationship was similar; Victoria Chan told her what to do, and Chan could terminate her at will. (See Fact No. 5, 14)
With regard to the conference that Smythe was attending in northern California at the time of the accident, she had been instructed by Chan to attend the ITC conference in Marin. (See Fact No. 6) It would have been an issue if Smythe had declined to attend the conference. (See Fact No. 7) She was told what her objectives were while at the conference. (See Fact No. 8) She was told to travel to the conference, stay at the company house, attend the conference, and take a team to represent ABC. (See Fact No. 9) She did what she was told. (See Fact No. 10) By her second stint with ABC, she had a lot of experience, but Chan was still in charge of her work. (See Fact No. 11)

Continue reading "Man From Folsom Now Quadriplegic After Car Accident, Part 6 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

7. President Smythe’s job was not finished on July 17. Smythe intended to do some work for ABC on the morning of July 18, including checking e-mail and voicemail, doing follow-up, and preparing for her day using an ABC-issued phone and laptop issued for these purposes. Any such work would have been billed accordingly. [Smythe deposition, at 119:7-16; 119:21-121:2.]
B. Nancy Smythe Was an Employee of ABC
The seminal and well-reasoned case of Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, discusses at length the factors to be evaluated in determining employment status.
The most significant factor in determining whether the status of a person performing services for another is an employee or an independent contractor is the right to control the manner and means of accomplishing the result, that is, the details of the work. ‘If the employer has the authority to exercise complete control, whether or not that right is exercised with respect to all details, an employer-employee relationship exists.’

Id. at 873-874, quoting Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33, 43.

In addition to the determination regarding the right to control the manner and means of the work, the Toyota court also recognized factors set forth in the Restatement (2nd) of Agency, section 220, as additional matters of fact that must be considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

Continue reading "Sacramento-area Driver Catastrophically Injured, Part 5 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

“Q. You had the right to direct Nancy Smythe in her work at ABC. True? A. Yes.”
2. An additional criteria creating an employer-employee relationship is the right to fire at will. Smythe did what she was told by her immediate superior, Chan, because Smythe believed she could be fired otherwise. [Smythe deposition, at 28:3-29:7; 31:2-14. Chan deposition, at 46:14-47:4, set forth below.]
“Q. You had the right to fire Ms. Smythe, if you chose to?
A. Yes.
Q. If he – if you found someone else who you thought could do a better job, you could have fired her and hired another person?
A. Correct.
Q. If she didn’t meet expectations, you could fire her?
A. Correct.
Q. If you decided to take the company in a different direction, you could fire her?
A. Correct.
Q. You could fire her whenever you felt like she wasn’t helpful?
A. Correct.”

3. In keeping with her status as an employee as of July 2006, according to CEO Chan, Smythe was “Acting President” of ABC. [Chan depo, at 25:19-26:13.] Smythe had the responsibilities of the President of ABC. [Smythe depo, at 108:11-20.] Chan introduced Smythe as President and Chief Operation Officer. [Chan depo, at 100:25-101:7.]

Continue reading "Folsom Driver Injured in Automobile Crash, Part 4 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

2. Even if an agreement appears unambiguous, the Court must consider extrinsic evidence disclosing a latent ambiguity. [Wolf v. Superior Court (2004) 114 CA4th 1343, 1351]
3. No weighing of evidence. Matters going to the weight or credibility of evidence must be disregarded. One witness opposing the motion is sufficient to controvert a dozen supporting the motion. [Mann. V. Cracchiolo (1985) 38 C3d 18, 39; Binder v. Aetna (1999) 75 CA4th 832, 840]
4. Uncontroverted declarations must be accepted as true. [CCP $437c(e)]
5. The Court must consider not only plaintiff’s direct evidence but also all inferences that can be reasonably drawn from plaintiff’s evidence. A reasonable inference is sufficient to create a triable issue of fact and defeat a motion for summary judgment. [Hulett v. Farmers (1992) 10 CA4th 1051, 1059]
6. No weighing of reasonable inferences. [Aguilar v. Atlantic Richfield (2001) 25 C4th 826, 856]
7. Plaintiff’s declarations and evidence opposing the motion must be liberally construed, but defendant’s declarations and evidence are to be strictly construed. This reflects the cautious judicial attitude about granting summary judgment and depriving the plaintiff with the right of trial. [D’Amico v. Board of Medical Examiners (1974) 11 C3d 1, 21; Binder v. Aetna (1999) 75 CA4th 832, 839; Powell v. Kleinman (2007) 151 CA4th 112, 125 – 126]
Applying the above rules to the case at bar, defendant’s motion should be denied.

Continue reading "Bay Area Car Crash By Employee Results In Catastrophic Injury, Part 3 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

II. LEGAL STANDARD
A party who seeks a court’s action in its favor bears the burden of persuasion thereon. (Evid. Code § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 (emphasis added).) Therefore, defendants moving for summary judgment bear the burden of persuasion that one or more elements of the cause of action in question “cannot be established,” or that “there is a complete defense” thereto. (Aguilar, supra, at 850.)
If there is even one triable issue of material fact the motion must fail. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 854-855) Additionally, the moving party’s evidence must be strictly construed “in order to avoid unjustly depriving the plaintiff of a trial.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) [See The Rutter Group, Civil Procedure Before Trial, Chapt. 10-E, §§ 223 et seq.]
As the moving party, ABC has two opportunities to submit pleadings to the Court. Plaintiff John Gibbs has only one such opportunity. Why? This is because ABC has the burden of persuasion and, in addition, the following rules apply:

Continue reading "Automobile Accident Leaves Folsom Driver Paralyzed, Part 2 of 14." »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiff, JOHN GIBBS, submits this Opposition to Defendant ABC MANUFACTURING, INC’S (hereinafter, “ABC”), Motion for Summary Judgment.

I. FACTS
NANCY SMYTHE, who had previously been employed by ABC, returned to the company in April 2006. There was never any formal agreement. During the years Ms. Smythe was not working for ABC, the Chief Executive Officer (“CEO”) of ABC, Victoria Chan , had from time to time asked Ms. Smythe to return. In April of 2006, Ms. Smythe sent CEO Chan an email offering to consult for a short period.
While initially anticipating this would be a short term, part-time assignment, the job quickly morphed into full-time employment during which Ms. Smythe was an employee, engaged in all aspects of running, improving, and directing the company. CEO Chan told not only Ms. Smythe but also ABC customers, potential customers, and employees that Ms. Smythe was ABC’s President and Chief Operating Officer. Smythe was working full time, was paid hourly, and never took on any other consulting clients. As an employee and President, Ms. Smythe’s work was controlled and directed by CEO Chan. Ms. Smythe served at Chan’s pleasure. Ms. Chan had the right to fire employee Smythe without notice.
Each year in July, ABC attended a conference of international technology leaders in Marin County (“ITC Conference”) with the hopes of finding new customers and expanding its manufacturing and business base. In 2006, CEO Chan planned to attend and was a scheduled speaker at the conference. She directed ABC President Smythe to attend; she complied. CEO Chan, President Price, and a number of other lesser ABC employees made the trip from ABC’s headquarters in Austin, Texas to Marin County, California where the ITC conference was held. It was a multi-day rip to promote ABC.

Continue reading "Sacramento-area Man Paralyzed in Car Accident, Part 1 0f 14" »

On Saturday, a bus overturned on Highway 80 near Truckee killing one and injuring many. The bus was carrying employees to work at a Lake Tahoe ski resort. The deceased victim was ejected from the bus. The crash is under investigation.

Twenty-five occupants on board, including the driver, were injured and taken to area hospitals, according to California Highway Patrol Officer Steve Skeen. Four people were taken by helicopter from the scene and one person transferred between hopsitals by air.

A spokeswoman for one hospital treating accident victims said one person is in critical condition and five are serious. The Associated Press is reporting that five people were critically hurt. Skeen said the driver suffered significant injuries.

The shuttle bus is owned by the Resort at Squaw Creek and was carrying employees from their homes in the Reno area to jobs in Squaw Valley. The crash occurred in clear weather at 8:28 a.m. on westbound Interstate 80 west of Floriston and just east of the Hirschdale exit.

Investigators are looking into driver fatigue as the cuae of the crash. CHP spokesman Steve Skeen said Sunday the driver remains in the hospital with head trauma and is no condition to be questioned at length. The crash happened at about 8:30 a.m. in clear conditions, with no other vehicles near the bus, police said. Skeen said the 66-year-old driver may have been on the road since 5:30 a.m. or before.

Continue reading "Bus Accident Near Truckee Kills One, Many Injured" »

Donte' Stallworth, a star NFL receiver for the Cleveland Browns, was charged Wednesday with DUI and vehicular manslaughter for his role in the death of a pedestrian in Miami on March 14, 2009. Stallworth's automobile struck and killed a 59-year-old man who finished his construction work shift around 7:15 a.m., and was attempting to cross the street. Stallworth grew up in Sacramento and played football for Grant High School before accepting an athletic scholarship to the University of Tennessee.

The twenty-eight-year-old Stallworth was detained after the automobile-pedestrian accident and subjected to field sobriety testing. According to his blood test, Stallworth's blood-alcohol level was .126, well above the .08 level allowed under Florida (and California) law.

"I hit the man lying in the road," Stallworth told officers arriving to investigate the crash, according to the affidavit. One officer smelled alcohol on Stallworth's breath and said that his eyes appeared bloodshot and watery. Stallworth has expressed public sympathy for the family of the victim.

If convicted of the manslaughter charge, Stallworth would face up to 15 years in prison.

"Whenever a deadly accident occurs and a driver is impaired, families suffer," said Miami-Dade State Attorney Katherine Fernandez Rundle in a statement. "I can only repeat this message over and over: If you are going to drink, don't drive."

Continue reading "NFL Star From Sacramento Charged In DUI-Pedestrian Fatal Accident" »

A car chase in Sacramento's midtown area ended in a three-vehicle crash Tuesday night, with the driver of a stolen car sent to a hospital with major injuries, California Highway Patrol officials said. The chase started at 16th and X streets about 8:40 p.m. when a CHP officer in a cruiser saw a car traveling the wrong way on 16th Street, said Sgt. Dan Brito of the CHP. The officer tried to stop the gray early-'90s model Toyota Camry when it accelerated, Brito said.

During the high-speed pursuit, the driver of the Camry swerved to avoid the crash but lost control and began fish-tailing down X Street, Brito said. Near the end of the block, the Camry slammed into a parked Toyota Corolla, mangling the car and sending a Volvo station wagon parked in front of it careening down the street, where it slammed into a nearby apartment building about 100 feet away.

The Camry, which had been reported stolen, flipped onto its roof, ejecting two passengers onto the nearby freeway embankment and trapping the driver and front passenger in the car, Brito said. The driver of the car sustained major injuries in the crash, Brito said. The passengers, described as boys about 16 years old, were apparently uninjured in the crash but were taken to UC Davis Medical Center, along with the driver, as a precaution, Brito said.

Continue reading "Sacramento Midtown Car Chase Ends In Crash" »

A 70 year old man was killed while crossing the street in North Highlands, a suburb of Sacramento.

The victim was struck while crossing Elverta Road outside of a crosswalk near Walerga Road, the California Highway Patrol said.

CHP said that the motorist, who was driving westbound on Elverta Road, didn't see the pedestrian.

We here at the offices of Moseley Collins wish to express our sincerest condolence's for the victim's families in this tragic death.

If you have any questions, please contact the law offices of personal injury attorney Moseley Collins on the web or by calling 916-444-4444.

Source: http://sacbee.com/

According to an official CHP report delivered to the Colusa County district attorney, the driver involved in a fatal Colusa County bus crash was exhausted and dozing off at the wheel.

The case is in review to determine whether criminal charges will be pressed against the driver. The driver could be charged with either a felony or a misdemeanor.

The crash occured on October 5th near the town of Williams, north of Sacramento. The casino-bound charter bus veered off a narrow rural road into a ditch. The crash killed ten people and injured 33, including the driver.

The report indicates that the crash was caused by extreme driver fatigue. Eyewitness accounts say that the company's owner, who died in the crash, grabbed the wheel in a futile effort to avoid crashing.

We here at the law offices of Moseley Collins send our deepest sympathies to the families who lost loved ones in the crash.

If you have any questions, please contact the law offices of Sacramento personal injury lawyer Moseley Collins on the web or call 916-444-4444.

Source: http://sacbee.com/

A passenger vehicle and a railroad train collided early Monday morning, reports California High way Patrol online.

The collision occured around 5:15 a.m. at Florin Road, just east of 29th Street, in south Sacramento.

The driver of the passenger vehicle suffered moderate injuries and was taken to a local area hospital, says Sacramento P.D.

Police are still in the process of completing their investigation.

If you have any questions about car accidents, please contact the law offices of Sacramento personal injury lawyer Moseley Collins on the web or at 916-444-4444.

Source: http://sacbee.com/

A Sacramento woman was killed by a suspected drunk driver, California Highway Patrol officials said Tuesday.

The 38-year-old mother of 5 had just left her apartment in the 9100 block of Madison Avenue when, around 7:15 pm, she was t-boned by the suspected drunk driver.

Authorities said that a white Ford F-350 pickup was heading eastbound on Madison when it veered off the road and into the victim’s vehicle. The truck hit the victim on the driver’s side, causing the vehicle to spin and come to rest in a grassy area.

CHP officials said that the driver of the F-350 lost control of his vehicle in the rain. He was later treated at a hospital for minor cuts and scrapes. Afterward, he was booked into the Sacramento County jail on felony charges of vehicular manslaughter and driving under the influence.

The victim was pronounced dead at the scene of the incident.

The mother of five leaves behind her husband and five sons, all between the ages of 4 to 11.

We here at the Law Offices of Moseley Collins express our deepest sympathies for the victim’s family.

For more information, please contact personal injury attorney Moseley Collins on the web or at 916-444-4444.

Sitting at the light just like I did every day of the week on my ten mile commute to work, I started adjusting the radio. I was tired of the talk radio and looking for some “feel good” music when BAM! My car leaped forward like a rabbit and I automatically pressed the brake harder to stop it before I hit the cross traffic.

What a shocker! I had just been rear-ended and I had no clue. I felt like I had just dropped 10 floors in an out of control elevator and hit the bottom floor at full speed.

Now the traffic light turned green and cars on each side of me moved forward leaving me sitting there like a stranded ship. I pushed myself up from the steering wheel and looked in the rear view mirror. All I could see from my low sedan was my rear window full of an SUV grill. It looked enormous even though it was just a regular SUV.

Traffic was passing me like a rock in a stream as I checked my fingers to see if they worked. Everything seemed to be OK. I turned the rear view mirror towards me to see my face, which also looked OK. My nose was starting to throb and I could feel my heart beating.

I noticed the door made a new squeaking noise as I opened it and carefully stood up out of the car. I felt like I was getting out of bed after a bad nights sleep.

I slowly walked back to the SUV and all I could see through the windshield was air bags and a hand pressed against the driver’s window.

Continue reading "Rear Ended in Sacramento - What a Shocker!" »

Unless your name is Evil Knievel, you are probably a person who likes to avoid perilous situations while driving your car. Here are a few suggestions that might help:

1. Never drink and drive,
2. Don't speak on your cell phone without a hands-free device,
3. Check your side-view and rear-view mirrors often, and
4. Avoid Watt Avenue.

While the first three suggestions are fairly common, if not well-followed by most drivers across the country, the fourth is probably new to you.

According to a report by Caltrans, called the "5 Percent Report," Watt Avenue is among the most dangerous streets in California. The report is based upon the crash rates on half-mile segments of streets between 2004 and 2006. The study included local cities Folsom, Orangevale, Rancho Cordova, CItrus Heights, Carmichel, Roseville, Placerville, and others. The city of Sacramento is the second most crash-prone city in California, with nearly 100 high- accident "hot spots." Of those one hundred hot spots, 9 are situated along Watt Avenue.

According to the Sacramento Bee, Watt is prone to car accidents because it is one of the few streets that not only crosses the American River but also connects Highway 50 and Interstate 80. The high number of streets that pour into it and the nearby popular Arden Fair mall doesn't help either. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

California Highway Patrol's Lizz Dutton commented to the Bee,

It's an aggressive street. It's so busy, and people are coming at you from every direction.

Continue reading "How to Avoid a Car Accident in Sacramento" »

August 1, 2008 was a very hectic and chaotic time for early morning commuters on Interstate 5, in San Diego, California. Four people were in a car, when they suddenly lost control of the car and crashed. CHP officers found alcohol in the drivers system, and the 3 passengers in the car were immediately submitted into UCSD Medical Center with very critical injuries. this crash only involved one vehicle, but managed to shut down the transition ramp from eastbound Interstate 8 to southbound 5 for an hour and a half. No further information has been disclosed to the public.

According to www.MAAD.org:

In 2006, an estimated 15,827 people died in alcohol-related traffic crashes—an average of one every 33 minutes. These deaths constitute 37 percent of the 42,532 total traffic fatalities. Of these, 13,470 involved a driver with an illegal BAC (.08 or greater). On average someone is killed by a drunk driver every 39 minutes.

About three in every ten Americans will be involved in an alcohol-related crash at some time in their lives.
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In 2002, surveys estimates that Americans took over 159 million alcohol-impaired driving trips, compared with only 116 million in 1997.

Over 1.46 million drivers were arrested in 2006 for driving under the influence of alcohol or narcotics. This is an arrest rate of 1 for every 139 licensed drivers in the United States.
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In 2002, 2.3% of Americans 18 and older surveyed reported alcohol-impaired driving, including 3% of 18-20 year olds and 4.1% of 21-34 year olds.

Of the over 159 million alcohol-impaired driving trips estimated that Americans took in 2002, over ten percent (18 million trips) were made by 18-20 year olds.
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Since 1980 (the year Mothers Against Drunk Driving was founded), alcohol-related traffic fatalities have decreased by about 44 percent, from over 30,000 to under 17,000 and MADD has helped save over 300,000 lives.

Alcohol-related crashes in the United States cost the public an estimated $114.3 billion in 2000, including $51.1 billion in monetary costs and an estimated $63.2 billion in quality of life losses. People other than the drinking driver paid $71.6 billion of the alcohol-related crash bill, which is 63 percent of the total cost of these crashes.

If you or a loved has been injured or killed from a car accident and it wasn't your fault, you have a claim for personal injury or wrongful death. It is very important that you find an experienced attorney to fight for your rights as a victim. So many times people incur huge bills after an accident like this.

Moseley Collins is a Sacramento personal injury attorney, specializing in major injury cases, including people injured or killed by car accidents.

Paul Smith was a fatal victim in a drunk driving accident on Friday, August 1st in Sacramento, California. Smith was a passenger in a car driven by Kirk Jones; both were Sacramento residents. Jones was driving a Pontiac, and was traveling at about 70 mph on Highway 116 when he attempted to pass another car while crossing a double yellow line. Jones swerved back into his own lane to avoid on-coming traffic and hit the side of the car he was passing. Eventually Jones' car hit the guard rail and came to a complete stop, but Paul Smith suffered major injuries and died at the scene. Jones suffered minor injuries and was arrested on suspicion of drunk driving and vehicular manslaughter.

It is a tragedy Paul Smith died, but there will always be risks when you get in a car with a drunk driver. It's a risk that's not worth taking. Paul Smith would still be alive today if he had not gotten in Jones' car, but rather had found another way home.

In 2006, an estimated 15,827 people died in alcohol-related traffic crashes—an average of one every 33 minutes. These deaths constitute 37 percent of the 42,532 total traffic fatalities. Of these, 13,470 involved a driver with an illegal BAC (.08 or greater). On average someone is killed by a drunk driver every 39 minutes.

About three in every ten Americans will be involved in an alcohol-related crash at some time in their drivers.

Continue reading "Sacramento Man Killed By Friend In Drunk Driving Accident" »

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