The court found that while plaintiffs/appellants conceded the demurrers to the elder abuse cause of action were properly sustained, their proposed amended complaint still did not cure the defects: They repeatedly failed to properly plead a cause of action for violation of the elder abuse act, and did not allege sufficient facts against the corporate employers---the Regents and Tarzana Medical Center. The court also found that plaintiffs’ cause of action for wrongful death was time-barred and could not be saved by the relation-back doctrine.

Although the Court of Appeal reversed the judgment in favor of the other physician, who was represented by other counsel, it affirmed the judgment in favor of The Regents. The appellate court held there was no disputed issue of material fact that would justify a trial as to the alleged liability of the UCLA physician named in plaintiffs’ complaint. As GMSR had argued, the pleadings define the scope of the issues on a summary judgment motion, and plaintiffs’ opposition to The Regents’ summary judgment motion pinpointed the conduct of a physician other than the physician charged in their complaint as the alleged wrongdoer at UCLA Medical Center. And, even as to the uncharged UCLA physician, the appellate court agreed that plaintiffs’ evidence was too conclusory and insubstantial to create a triable issue of fact as to the alleged malpractice.

Ninth Circuit affirms summary judgment for Los Angeles County Sheriff Lee Baca in section 1983 "deliberate indifference" case
April 3, 2009

McCullock v. Los Angeles County Sheriff, Sheriff Baca (9th Cir. 2009) 320 Fed.Appx. 814 (Ninth Circuit Court of Appeals) [unpublished]. The Ninth Circuit affirmed summary judgment in favor of Los Angeles County Sheriff Lee Baca on plaintiff's section 1983 claim, which alleged that plaintiff was denied constitutionally adequate medical treatment while jailed. Specifically, he claimed that Baca failed to treat him with insulin for his diabetes (although he was a Type II, non-insulin-dependent diabetic). The Ninth Circuit held that there was no triable issue of material fact as to whether plaintiff suffered any harm, or whether Sheriff Baca personally participated in any constitutional violation.

In affirming, the Court of Appeal agreed with GMSR’s arguments that the inadequate appellate record plaintiff had provided made it impossible for her to show error, and that in any event the trial court properly exercised its discretion to deny a second continuance. Among other things, the court found that the plaintiff had failed to make the statutorily required showing to justify a second continuance, and it rejected her attempt to shift the blame to her prior counsel for the delay in preparing an opposition.

GMSR argued that (a) because registration is a prerequisite for obtaining mandatory work credits necessary for licensure, it is an integral part of the statutory licensing procedure and subject to MICRA protections and (b) registrants do not forfeit those protections by technical breaches of provisions of the licensing statute. The Court of Appeal agreed, and affirmed summary judgment for GMSR’s clients. It relied in part on another GMSR case decided during the pendency of Prince, Chosak v. Alameda County Medical Center.

Dismissal affirmed -- plaintiffs must show reasonable diligence in presenting a tort claim to a public entity
July 26, 2007

Ramos v. County of Los Angeles (2007), 2007 Cal.App. Unpub. LEXIS 6091 (California Court of Appeal, Second Appellate District, Division Seven) [unpublished]. A woman was hit by two cars while crossing the street in Whittier one evening and died. Almost a year later, and beyond the six-month period for presenting a government tort claim, the woman’s heirs presented late claims to four public entities, alleging that the street where the woman died was unsafe, dangerous and poorly lit. The claims were all denied and plaintiffs sought relief from the claim-presentation requirements in superior court. The Court of Appeal affirmed the trial court’s order denying such relief on the ground that plaintiffs failed to show the delay in presenting the claims was due to excusable neglect.

Court of Appeal reverses denial of anti-SLAPP motion on mixed cause of action
May 25, 2007

Gallanis-Politis v. Medina, et al., (2007) 152 Cal.App.4th 600 (California Court of Appeal, Second District, Division 8) [published]. Jens Koepke and Marty Stein convinced the Court of Appeal to reverse the denial of an anti-SLAPP motion with directions to grant the motion and award attorneys’ fees and costs to GMSR’s client. Plaintiff, a Los Angeles County employee, had alleged that two other employees had retaliated against her by conducting a pretextual investigation into her entitlement to a bilingual bonus. The Court of Appeal held that the defendant employees’ investigation was covered by the anti-SLAPP statute because it was related to a discovery request propounded by the plaintiff, and that plaintiff would not probably prevail because the defendants’ activities were covered by the litigation privilege. In reaching its decision, the court ruled that the fact the plaintiff had alleged other unprotected actions by defendants did not remove the case from anti-SLAPP coverage, because those other activities were incidental to and not the main focus of plaintiff’s claim.

Ninth Circuit vacates ruling that nondisclosure of wiretap was constitutional violation
May 10, 2007

Whitaker v. Garcetti, 486 F.3d 572 (9th Cir. 2007) 2007 U.S.App. Lexis 11012 [published] Alison Turner and Marty Stein convinced the Ninth Circuit to vacate a declaratory relief ruling by the district court that a procedure employed by the Los Angeles Police Department and the County of Los Angeles’ District Attorney’s Office to avoid disclosing the existence of a wiretap was a violation of plaintiffs’ Fourth Amendment rights. Seven of the eight plaintiffs had been arrested for and convicted of drug-dealing on evidence derived from investigations triggered by the wiretap investigation. Without reaching the constitutional issue, the Ninth Circuit held that Heck v. Humphrey bars their declaratory relief claims under 42 U.S.C. section 1983, because success would necessarily imply the invalidity of their convictions. On the same ground, Heck required affirming summary judgment for defendants on plaintiffs’ damages claims for nondisclosure and judicial fraud. The eighth plaintiff, an attorney whose call was intercepted during the wiretap investigation, was allowed to proceed with his claim for judicial fraud in obtaining the wiretap order, but he was found to have waived any appeal from the dismissal of his claim based on nondisclosure.

The Ninth Circuit also rejected plaintiffs’ challenge to the denial of their attorney fees for lack of jurisdiction. Plaintiffs neglected to file a separate notice of appeal or to amend the notice of appeal they had filed to challenge the summary judgment rulings on their damages claims.

Court of Appeal rejects effort to assert fraud claim on the basis of alleged spoliation of evidence
March 26, 2007

Goldsmith v. Superior Court; Lee (2007) 2007 Cal.App. Unpub. LEXIS 2370 (California Court of Appeal, Second District, Division 4) [unpublished]. The trial court allowed the plaintiff in this medical malpractice action to base a cause of action for fraud and punitive damages on her claim that GMSR's client had altered her medical records. Barbara Perry and Marty Stein obtained a writ of mandate vacating the order. The Court of Appeal held that Cedars Sinai Medical Center v. Superior Court (1998) 18 Cal. 4th 1 precludes all tort claims based on alleged spoliation of evidence, rejecting the plaintiff's effort to avoid this rule by attempting to frame the claim as one for fraud.

Ninth Circuit affirms summary judgment for the defendants in a prisoner’s pro se appeal
March 21, 2007

Steven J. Wohl v. County of Los Angeles, et al., (2007) 2007 U.S. App. LEXIS 6965 (Ninth Circuit) [unpublished]. The plaintiff/appellant, a California state prisoner, alleged his civil rights were violated when he was a pretrial detainee in the County jail. Alison Turner and Marty Stein persuaded the Ninth Circuit to affirm summary judgment for the County, Sheriff Baca, and a number of County employees, The court held that the district court had properly deemed certain matters admitted after the plaintiff failed to respond to requests for admission, a failure that left no disputed fact issues. It also held that the district court properly refused plaintiff’s request for more time to conduct discovery as to certain defendants who were served after the discovery deadline had passed, finding that he had failed to demonstrate that he had been diligent in pursuing previous discovery or that the additional discovery would have precluded summary judgment.

Court of Appeal ends 14-year saga against UC Regents
January 10, 2007

Aller v. Regents, (2007) Cal.App.Unpub. LEXIS 165 (California Court of Appeal, Second District, Division 7 (Los Angeles)) [unpublished]. Carolyn Oill and Marty Stein secured a victorious ending in a 14-year-old case against the UC Regents. The case had earlier been dismissed for failure to prosecute, which dismissal was reversed on a prior appeal. More than five years after the case returned to the trial court, the action was dismissed again, this time because plaintiffs, who were representing themselves, were not ready to proceed with trial. On appeal, plaintiffs argued that the trial court should have granted their pre-judgment motion to force the Regents to settle the case on terms which were directly contrary to the record. The court of appeal affirmed, holding that the trial court acted well within its discretion in finding that the Regents refused to settle without a waiver of confidentiality.

MTA is immune from liability for criminal acts by third parties against would-be bus passengers
December 12, 2006

Herzlich v. Los Angeles County Metropolitan Transit Authority, (2006) Cal.App.Unpub. LEXIS 11117 (California Court of Appeal, Second District, Division Eight (Los Angeles)) [unpublished]. Cindy Tobisman, together with Marty Stein and Timothy Coates, obtained a ruling by the Court of Appeal that it was proper to sustain a demurrer without leave to amend to the plaintiff’s third amended complaint. Plaintiff was a Taft High School student shot as he waited for a bus at a crowded stop. He sued the MTA, arguing that his injuries resulted from the bus driver’s failure to discharge his duty to board all willing passengers. The MTA successfully argued that it had no duty to prevent assaults on non passengers by criminal third parties.

Ninth Circuit affirms summary judgment in civil rights case
November 13, 2006

Williams v. County of Los Angeles, (2006) U.S.App.LEXIS 28085 (United States Court of Appeals for the Ninth Circuit) [unpublished]. Lillie Hsu, Carolyn Oill and Marty Stein combined for this victory. A prisoner filed a section 1983 action, pro se, against the County of Los Angeles, alleging he was denied a lower bunk even though he had medical authorization for one. The memorandum opinion holds that the district court: (1) properly granted summary judgment on plaintiff's claim under Monell v. Department of Social Services, 436 U.S. 658 (1978), because plaintiff provided no evidence that the County had a pattern or practice of denying bottom bunks to inmates with medical authorization for such bunks; (2) properly dismissed plaintiff's claims against Sheriff Baca because plaintiff failed to raise a triable issue of material fact regarding Baca's involvement in the alleged constitutional violations; and (3) properly denied plaintiff's request for a sixth extension of time to file objections to the Magistrate's report, which recommended that summary judgment be granted.

Age discrimination verdict against MTA is reversed
November 2, 2006

Fu v. Los Angeles County Metropolitan Transp. Authority, (2006) Cal.App.Unpub. LEXIS 10028 (California Court of Appeal, Second District, Division Five (Los Angeles)) [unpublished]. Barbara Perry and Marty Stein secured a complete reversal here. The jury awarded the plaintiff $1,678,000 in damages, $57,961 in costs and $275,865 in attorney fees in this age discrimination lawsuit against the MTA. The Court of Appeal reversed the judgment for wrongful termination and failure to rehire under FEHA with directions to the trial court to enter judgment for the MTA, holding that: (1) summary adjudication should have been granted to the MTA on plaintiff's wrongful termination claim because the release signed by plaintiff operated to waive his state law claims under FEHA; (2) there was no requirement that the release comply with federal statutes protecting older workers because plaintiff did not plead an action under federal law; (3) the jury's verdict for discrimination for failure to rehire had to be reversed because one of the positions plaintiff relied upon to support his claim was withdrawn before any interviews were conducted; and (4) there was no substantial evidence to support the jury's verdict that plaintiff was the subject of age discrimination in the hiring process as to three other positions that were not withdrawn.

Plaintiff’s appeal dismissed as untimely
September 25, 2006

Wang v. Alta Bates Summit Medical Center, (2006) Cal.App. Unpub. LEXIS 8459 (California Court of Appeal, First District, Division One (San Francisco)) [unpublished]. Carolyn Oill and Marty Stein represented GMSR’s client, a medical center. The plaintiff sued for allegedly “falsifying” her medical records. The trial court dismissed the action when the plaintiff failed to amend the complaint after a demurrer was sustained with leave to amend. The Court of Appeal dismissed the plaintiff’s appeal as untimely in that it was filed more than 60 days after notice of entry of the judgment of dismissal was served, and more than 60 days after notice of entry of the subsequent order denying the plaintiff’s motion for reconsideration.

Dismissal of medical malpractice action affirmed
August 16, 2006

Burrus v. City of Los Angeles, (2006) U.S.App. LEXIS 21076 (United States Court of Appeals for the Ninth Circuit) [unpublished]. Lillie Hsu, Carolyn Oill and Marty Stein combined for this recent victory. In a memorandum decision, the Court affirmed the district court's dismissal of the plaintiff's pro se complaint against the County of Los Angeles and one of its jail physicians for negligence and medical malpractice. Resting on an argument made in GMSR's appellees' brief, the opinion holds that the district court properly dismissed the plaintiff's claims based on the statute of limitations set forth in California Code of Civil Procedure section 340.5, which requires a plaintiff to file his complaint both within three years of injury and within one year after he discovered, or should have discovered, the injury. The Court reasoned that the one-year limitation period began to run when the plaintiff filed his administrative claims; thus, the complaint, filed over a year later, was untimely.