Recent Wins: Barbara Springer Perry
Court of Appeal affirms judgment in favor of GMSR’s client
November 3, 2011
Wachtel v. Regents, et al. (2011) 2011 Cal.App. Unpub. LEXIS 8410 (California Court of Appeal, Second Appellate District, Division Three) [unpublished]. The Court of Appeal affirmed a judgment in favor of GMSR’s client, The Regents of the University of California, and multiple other medical defendants after the trial court sustained a demurrer without leave to amend on the plaintiffs’ sixth attempt to amend their complaint to state viable causes of action against the healthcare entities and their physicians that had treated the decedent.
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.
Wachtel v. Regents, et al. (2011) 2011 Cal.App. Unpub. LEXIS 8410
Court of Appeal requires underlying physiological cause as prerequisite to maintaining claim for employment discrimination based on “perceived” disability
November 6, 2009
Hines v. Los Angeles County Metropolitan Transportation Authority (2009) 2009 Cal.App. Unpub. LEXIS 8865 (California Court of Appeal, Second Appellate District, Division Five) [unpublished]. GMSR won affirmance of client MTA’s summary judgment in an employment discrimination action. Plaintiff alleged that MTA wrongfully discriminated against her because of her obesity. The evidence established that her obesity had no underlying medical cause, but resulted from life style choices. She relied on statutory language defining “perceived” disability as “any physical condition” that limited a major life activity. (Gov. Code § 12926(k)(4).) By analyzing a voluminous legislative history to explain the genesis of the phrase and its contexual significance, GMSR was able to convince the Court of Appeal that the phrase “any physical condition” relates only to conditions with an underlying physiological cause.
Hines v. Los Angeles County Metropolitan Transportation Authority (2009) 2009 Cal.App. Unpub. LEXIS 8865
Court of Appeal affirms nonsuit for GMSR’s clients in police shooting case
December 10, 2008
Myles v. County of Los Angeles (2008) 2008 Cal.App. Unpub. LEXIS 9928 (California Court of Appeal, Second Appellate District, Division Two). [unpublished]. GMSR obtained a decision affirming a nonsuit for the defendant County and its employees. The plaintiff claimed that two deputy sheriffs shot him unlawfully, but the Court of Appeal agreed with the trial court that he failed to produce sufficient evidence identifying the defendant-deputies. On appeal the plaintiff also contended that the trial court had erred in refusing to grant him a trial continuance. The Court of Appeal accepted GMSR’s argument that plaintiff had failed to produce a record adequate to demonstrate trial court error, and failed to demonstrate prejudice resulting from the denial of a continuance. The court also rejected an array of substantive and procedural challenges to the nonsuit ruling itself.
Myles v. County of Los Angeles (2008) 2008 Cal.App. Unpub. LEXIS 9928
Court of Appeal finds MICRA protection for registered social worker and licensed health care facility
April 4, 2008
Prince v. Sutter Health Central (2008) 161 Cal.App.4th 971 (California Third District Court of Appeal) [published]. Plaintiffs in this professional negligence case sought noneconomic damages in excess of the MICRA cap (Civ. Code § 3333.2) from GMSR's clients, a registered social worker and her employer, a licensed health care facility. The trial court granted defendants' motion for summary judgment. On appeal, the plaintiffs argued two theories: that MICRA applies only to licensed health care providers, and that the social worker was not in full compliance with statutory provisions relating to registrants.
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.
Prince v. Sutter Health Central (2008) 161 Cal.App.4th 971
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.
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.