Archives for General Civil Litigation

Thomas Wianecki And Michelle Prescott Of Wesierski & Zurek LLP Obtain A Defense Verdict For Two Orange County Deputy Sheriffs Accused Of Excess Force And Violating An Inmate’s Civil Rights

On August 23, 2014, an inmate at the Theo Lacy Facility was involved in a physical melee with two Orange County Deputy Sheriffs. The inmate alleged that his right ear was partially severed as result of excessive and unreasonable force. He claimed that he was attacked due to long standing feud with one of the Deputy Sheriffs. The inmate alleged being unnecessarily beaten and kicked in the groin multiple times without cause.

The truth was a polar opposite from the inmate’s allegations. The inmate was observed being given contraband (an unauthorized paper with a message or drugs) from another inmate. Plaintiff refused to give up the contraband on numerous occasions and disregarded multiple instructions to be searched. A physical altercation started with one of the Deputies placed in a chokehold/headlock by the inmate. The companion Deputy and other jail personnel responded. In the altercation, a portion of the plaintiff’s ear was inadvertently torn away, but was later re-attached in a successful grafting operation. The inmate was never kicked in the groin as claimed. He was punched, however, to gain the release of the Deputy from the chokehold. The inmate actively resisted until subdued by other responding Deputies. There was video tape footage for some of the events that took place.

The federal court jury deliberated for 9 hours over 2 days. A unanimous verdict was reached that the conduct of the Deputies was reasonable in light of the facts and circumstances for what occurred.

This is the second successful County of Orange defense verdict Mr. Wianecki has obtained over the past 10 months.

Court Rules in Favor of Los Alamitos Racing Association in ADA Case


On January 10, 2017, Chris Wesierski appeared for oral argument before the Federal  9th Circuit Court of Appeals in Pasadena,  representing the firm’s client Los Alamitos Racing Association in the case Michael Orlando v. Los Alamitos Racing Association. Mr. Orlando had sued the Los Alamitos race track, claiming he was disabled, and making a demand under the Americans with Disabilities Act (ADA) that a stairway entrance to the facility be demolished and replaced by a ramp to accommodate his claimed disability.  The race track denied all of the plaintiff’s claims, asserting that demolition of the stairway to build a 100 foot long ramp was not a “reasonable accommodation”.  The race track alleged that there is an alternate entrance to the race track that would be a “reasonable accommodation” under the ADA to give him equal access to the race track, given his claimed disability.  The plaintiff contended that the alternate entrance was, itself, unacceptable to him unless changes were made to this second entrance to “accommodate” his claimed disability.  The plaintiff sought a six figure judgment plus an award of attorney fees.

The firm filed a motion for the trial court to enter summary judgment for the race track and against the plaintiff on the basis that the entrances to the race track were in compliance with the ADA to allow handicapped persons to have equal access to the facility. The trial court granted the summary judgment motion in favor of our client Los Alamitos Racing Association in January, 2015, stating that the alternate entrance to the race track was a “reasonable accommodation” to allow the plaintiff to enter the race track, and that the plaintiff’s demanded changes to the alternate entrance were not needed. Judgment was entered in favor of the firm’s client.  The plaintiff appealed the judgment to the 9th Circuit Court of Appeals, claiming that the trial judge misunderstood the law, and demanding that the judgment be reversed.

After hearing lengthy oral argument from the plaintiff’s attorney and Mr. Wesierski’s responses, the Federal Court has affirmed the trial court’s judgment for the firm’s client, providing vindication to the race track that the accommodations that are provided to handicapped persons for entrance to the facility are in compliance with the ADA.  The court also awarded costs to Los Alamitos Racing Association as the prevailing party.

Christopher Wesierski, Christian Counts and Laura Barns achieve Judgment for Defendants based on Unclean Hands.

Christopher P. Wesierski and Christian C. Counts along with Laura J. Barns won this case on behalf of Igor Olenicoff and Olen Properties Corp. as well as Julie Ault against UBS AG and Bradley Birkenfeld. UBS AG sued all three defendants and Bradley Birkenfeld sued Igor Olenicoff and Olen Properties Corp. for their attorney fees and costs that totaled around $6 million. The case was scheduled for a two month jury trial and was eventually whittled down to a six week jury trial in front of Judge Kim Dunning in Department CX104. The case involved thousands of pages in over 1500 exhibits.

UBS AG and Bradley Birkenfeld won a prior Federal court case that Igor Olenicoff and Olen Properties Corp. had filed against them. They then sued in this case in State court for their attorney fees claiming that they should receive all their fees and costs back from the underlying case which had been filed by Igor Olenicoff and Olen Properties Corp. in Federal court.

The court bifurcated out the 23rd Affirmative Defense of Unclean Hands wherein defendants asserted that plaintiffs should not even be allowed to bring the lawsuit because of their previous bad acts. The court tried that issue first in a three day trial. The judge was the Honorable Kim Dunning. Plaintiff UBS AG had agreed to a Deferred Prosecution Agreement and paid $780 million in fines with admissions that they had deliberately violated United States laws. They admitted that they had their bankers travel to the United States with encrypted laptops so that if their laptops were found, the true information about accounts and account holders would not be available to the United States authorities. UBS AG admitted they taught their bankers how to evade US authorities by claiming they were on a pleasure trip rather than a business trip in the United States. UBS AG admitted that they sought out high net worth individuals at various events that they sponsored including yacht races and art shows in order to entice those individuals to place their monies in UBS AG accounts in Switzerland.
Bradley Birkenfeld was a banker who approached Igor Olenicoff and enticed him to move his accounts from Barclays in the Bahamas to UBS AG in Switzerland. He then recommended Igor Olenicoff to a number of people in Lichtenstein and Denmark in order to set up a trust which the United States eventually found to be a sham. Igor Olenicoff then paid a fine and Bradley Birkenfeld was eventually convicted of a felony for failure to advise the United States government about all that he knew in regards to these offshore accounts.

This case was pending for almost three years and Judgment was granted on Thursday, July 23, 2015, by Judge Kim Dunning in favor of the defendants. The judge indicated that she was now ending the case and that because of their bad acts, UBS AG and Bradley Birkenfeld could not proceed in California State courts and that she was barring them from proceeding in the California courts because of their “unclean hands.”

The case involved many twists and turns. Both Bradley Birkenfeld and Igor Olenicoff have appeared on 60 Minutes in regard to some of the facts in the underlying the case. There were many publications describing the case and the recent publications are linked at the bottom of this article including Forbes and Bloomberg.

Defendants are ecstatic over the result and very pleased that justice eventually prevailed and that plaintiffs UBS AG and Bradley Birkenfeld were barred from making any claims or assertions as against the defendants.

Please contact us if you have any questions in regards to this interesting case.

Health Facility Employees have a Right to Jury Trial on their Action for Money Damages Under Health and Safety Code Section 1278.5

Under Health and Safety Code section 1278.5, a health facility is prohibited from retaliating soktratiAlts against any of its employees for complaining about the quality of care or services provided by the facility. If an employee has been improperly retaliated against, the employee is entitled to “reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to [the statute] or any other applicable provision of statutory or common law.” The question of whether a wronged employee is entitled to a jury trial on the statutory cause of action under Health and Safety Code section 1278.5 was addressed by the California Court of Appeal, Second District, in Shaw v. Superior Court of Los Angeles County.

In Shaw, the plaintiff brought suit against her former employers, a health care facility, for alleged retaliation, including her ultimate termination. Plaintiff alleged that, during her employment, she complained to her employer about conditions at the facility that affected the quality of care and services provided, including a complaint that the facility employed health care professionals that were not licensed or certified. The plaintiffs complaint included a cause of action for violation of Health and Safety Code section 1278.5 and alleged she suffered past and future monetary losses, loss of benefits, emotional damages and physical injury. The issue of plaintiffs right to jury trial under Health and Safety Code section 1278.5 was addressed by the trial court. The trial Court concluded that the statutory cause of action was purely equitable and therefore the plaintiffs request for a jury trial was denied.

The Shaw Court began its analysis of plaintiffs right to jury trial by examining the language and legislative history of Health and Safety Code section 1278.5. The Court focused on the language of the statute which stated
that a wronged employee was entitled to “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.” The Shaw court noted that the statutory language
allowed for legal as well as equitable remedies, thereby giving rise to the inference that a jury trial was contemplated by the legislature. The Court reasoned that the language greatly broadened the scope of the remedies under Health and Safety Code section 1278.5 available to wronged employees, health care workers, and medical staff members. As such, it was determined that the statutory language and legislative history provided for a jury trial on legal issues under Health and Safety Code section 1278.5

Next, the Shaw court examined the plaintiffs right to jury trial under the California Constitution. The Court noted that a jury trial must be granted where the action sounds primarily in law. The Court found that plaintiff alleged she suffered lost wages, emotional distress, and physical injuries, for which she sought monetary damages. At common law, each form of damages was triable by a jury. As such, the Court held that plaintiffs right to a jury trial was further supported by a constitutional analysis.

The holding in Shaw does not entitle a plaintiff to a jury trial in all causes of action brought under Health and Safety Code section 1278.5. The key distinction in Shaw was that the plaintiff was seeking monetary damages for lost wages, emotional distress and physical injuries, not the equitable remedy of reinstatement.

– Andres Camacho

Suing Cities for On-Street Parking Design/ ADA

By: Paul J. Lipman

The recent Ninth Circuit case of Fortyune v. City of Lomita establishes that a plaintiff may sue a city under Title II of the ADA (the Title applicable to public entities) for failure to provide accessible on-street parking, even in the absence of regulatory design specifications. In other words, the defendant City had argued that, to sue under the ADA, there has to be a violation of existing specifications. The court disagreed and held that under the ADA, cities, including small towns, have an affirmative duty to make on-street parking accessible, even if no regulatory design specifications exist.

The disabled plaintiff sued the City of Lomita under the ADA, claiming he was unable to park on the streets due to lack of an accessibility program in that City. The City argued that absent the adoption of ADA implementing regulations specifically targeted to on-street parking, the City had no duty to provide accessible on-street parking. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination … “. Cases such as Barden v. City of Sacramento have defined “services, programs, or activities” by reference to what that phrase meant under ADA’s predecessor, the Rehabilitation Act, and have held that this phrase is to be interpreted broadly, “bringing within its scope anything a public entity does”. In particular, cases have held in the analogous situation of sidewalks that “services, programs or activities” includes the duty to maintain public sidewalks “because maintaining public sidewalks is a normal function of a city and without a doubt something that the City does”.

The City of Lomita argued that the sidewalk case didn’t apply because in Barden, existing sidewalk regulations did exist. The Fortuyne court responded that even though there were pre-existing sidewalk regulations in Barden, the holding of that case was based on the broad language of the ADA requiring that all “services, programs and activities” be accessible. In other words, as long as there are streets or sidewalks, the City has to make them accessible, whether or not there are specific ADA (or other) regulations setting out particular specifications.

The Fortuyne court also pointed out that in fact, two CFR regulations “do require accessible on-street parking”, though in fairness to the City we note that upon inspection these two CFR’s are just as general and non-specific as the ADA itself. One CFR requires public entities to “operate each service, program or activity, so that the service, program or activity, when viewed in its entirety, is readily accessible and usable by individuals with disabilities”. The other was similarly broad. However, the Department of Justice’s Technical Assistance Manual interprets this CFR and states that “if no standard exists for particular features … the facility must still be designed and operated to meet other title II requirements, including program accessibility”. An agency’s interpretation of its own regulations is given great deference.

Finally, the City argued that there is a more liberal standard for small cities, as set out in the “ADA Guide for Small Towns”. That guide notes that “the ADA standards … have … no technical requirements for the design of on-street parking”. The court said that is true, but that is not the same as saying that the lack of technical rules about on-street parking means that there doesn’t have to be any on-street accessibility. Likewise, another publication, the ADAAG, says at one point that “the … rules describe all of the ADA obligations of covered entities”, but at another point, it says that “when there are no provisions in ADAAG for a facility type, element or feature, [such facilities] are nevertheless subject to other ADA requirements, including the duty to provide equal opportunity …”. Thus, these interpretive or implementing manuals “impose general accessibility requirements on public entities even in the absence of technical specifications for a particular facility”.

Summarizing, the court held that “public entites must ensure that all normal governmental functions are reasonably accessible to disabled persons, irrespective of whether the DOJ has adopted technical specifications for the particular types of facilities involved.”


We will watch this case for possible challenges to it. The broad standard is troubling. In general, defendants and particularly their experts in ADA cases depend on being able to show the jury that no particular ADA specification was violated. Defense counsel should argue that this case should be confined to public entity cases (Title II cases), and not be applied to private property cases brought under another title. The case turns on specific language in Title II. Second, if the issue comes up under any title, defense counsel should try to make a “preemption” type argument. Namely, there are usually regulations that surround any particular alleged defect even if they don’t address it specifically, which is a different situation than the City simply having no regulations at all, as was the case for on-street parking accessibility in the Fortuyne case. If, say, a person alleges that a walkway on property was not ADA compliant because the curb was not painted a contrasting color from the asphalt beneath it, the argument should be that the ADA is chock full of regulations about the ramping, camber, cross-slope, handrailing and other features of walkways, so that the absence of a regulation for curb painting should mean that any color is considered ADA compliant. There are many complications to these types of arguments and they cannot be made in all cases. California also has other enabling statutes, such as the Disabled Persons Act and the Unruh Civil Rights Act which incorporate the ADA and give certain additional remedies, and these arguments vary according to what statute is being asserted. Wesierski & Zurek LLP have litigated these issues, and if you have any similar ones in claims or cases you are handling, please feel free to contact Paul J. Lipman or Frank D’Oro in the Los Angeles office, or Chris Wesierski or Tom Wianecki in the Irvine office to discuss.

Failure to List a Personal Injury Claim in Bankruptcy May Cause Dismissal of the Tort Action

December 12, 2013

By:  Paul J. Lipman

On 12/11/13, the Ninth Circuit affirmed a court’s dismissal of her employment discrimination lawsuit on grounds of “judicial estoppel”, based on the plaintiff’s knowing failure to list the lawsuit as an asset in her Chapter 7 bankruptcy schedules, and based on her failure to provide a declaration explaining how that could have been a mistake.  The court distinguished it’s own recent opinion going the other way (Ah Quin v. County of Kauai 733 F.3d 267 (9th Cir. 2013)).  In Ah Quin, the plaintiff filed a declaration opposing the motion to dismiss the tort suit, saying that “when she reviewed the bankruptcy schedules, she did not think that she had to disclose her pending lawsuit because the bankruptcy schedules were ‘vague’ .  Viewing the evidence in the light most favorable to Plaintiff, and thus crediting her affidavit, her bankruptcy filing was inadvertent”.  The court said in it’s Ah Quin opinion that giving the plaintiff the benefit of believing her affidavit, the failure to list was a mistake, notwithstanding some evidence to the contrary and the convenience of her timing (she knew of her claim originally, and amended her schedules only when it was safe to do so).  The main difference between Dzakula and Ah Quin is thus that in Dzakula, plaintiff made no attempt whatsoever, at any time, to file any kind of declaration or reconsideration motion to explain herself.

The results in these types of cases are split and depend on small factual differences.  One crucial factor is whether the plaintiff knew or should have known of her claim or potential claim.  In Dzakula, some language of the brief opinion suggests that when plaintiff originally filed the Chapter 7, the plaintiff might not yet have filed a claim or suit (“…Dzakula could have stated [in a declaration explaining herself] whether or not she had knowledge of enough facts to know that she had a potential cause of action against the Army or whether she was, or was not, able to engage counsel who thought enough of her case to represent her and pursue such claims”).  Other language suggests she knew of her claim (“by failing to list the claim while at the same time pursuing the claim, Plaintiff clearly asserted inconsistent positions”).  Nevertheless, the Ninth Circuit found that the district court had not abused it’s discretion when it found that plaintiff’s omission in the bankruptcy schedules was not “inadvertent or mistaken”, because Dzakula never tried to file an explanation. 

By way of background on this area of law:  In order for a debtor to get protection in bankruptcy from debt collectors, he or she has to file a list of his assets with the court and serve it on the creditors so that they and the court can make a reasonable split of the assets among the creditors, or even decide that there is nothing to split.  Good faith in listing all the assets is essential.  A debtor has a vested interest in making it look like his debts outweigh his assets, and to minimize his assets.  He also does not want his lawsuit passing to the trustee along with his other assets.  He often wants to keep the lawsuit for himself and keep it hidden from the bankruptcy court.  When a debtor intentionally does not reveal all his or her assets (and a lawsuit is an asset, because it can bring in money) to creditors lining up to split up the debtor’s net worth, and when the creditors and the bankruptcy court rely on this misrepresentation of how much the debtor has in deciding how much each creditor will settle for, a fraud has essentially been committed on the court and creditors.  In light of that, there is a doctrine called judicial estoppel that is sometimes applied in these situations that says that the debtor will not be allowed to play fast and loose with the courts like that, denying or hiding the lawsuit or claim in one case (bankruptcy) and asserting it in another (the lawsuit).  One discretionary remedy is to dismiss the lawsuit. In order to apply judicial estoppel, the court must find that (1) plaintiff asserted inconsistent positions in two courts;  (2) the bankruptcy court was misled by the omission; and (3) plaintiff in fact got an unfair advantage in bankruptcy court by failing to list the lawsuit as an asset.

When a plaintiff files bankruptcy at any time after an accident or after any other type of injury occurs, two potential theories of dismissal of the lawsuit present themselves:  

(1) Lack of standing.  When a person files bankruptcy, as a matter of law, all of his then-existing assets including both listed and unlisted assets turn into an “estate” that is now under the control of the trustee.  This is a court-appointed position.  The debtor may or may not remain in possession of certain of his assets (like a business or factory), but they are not his.  If and when there is a plan of reorganization approved (for Chapter 11 business reorganizations) or other resolution (Chapter 7 personal bankruptcies), the debtor may or may not get some or all of his assets back.  But if an asset is not listed, it will not be among those a debtor gets back. An unlisted lawsuit remains property of the trustee, unbeknownst to him.  The plaintiff does not have standing to pursue the suit.  As a practical matter, the plaintiff may try to ask the trustee to reopen the bankruptcy for the purpose of abandoning the lawsuit back to plaintiff.  This may or may not work.  In the interim, the plaintiff lacks standing to pursue the suit, because it doesn’t belong to him, and he might never get it back.  In bankruptcy, the trustee, charged with maximizing the value of the estate, would ordinarily take any claims or lawsuits the debtor has and either try them, to bring more money into the estate for the creditors to divide up, or abandon it back to the debtor if he chooses.  But until the trustee explicitly abandons it back to plaintiff, that lawsuit is no longer the plaintiff’s to pursue, from the moment he files his bankruptcy petition to the moment the lawsuit is formally given back to him, if indeed that ever happens.  Whether he lists the lawsuit as an asset or not, the very act of filing for bankruptcy transfers the ownership of the lawsuit to the trustee.  Plaintiff therefore loses standing to pursue it himself.

(2)  Judicial estoppel, discussed above.  The results are mixed in this area.  But where a good case can be made that the plaintiff knew of his asset (clearly knew of an injury from an accident and had reason to think defendant might be at fault, or had already filed a claim or suit by the time of the bankruptcy filing), and purposely omitted it in his verified bankruptcy schedules, a motion for dismissal of the lawsuit on judicial estoppel grounds is often worth pursuing.  The grounds are that plaintiff should be estopped from gaming the system, playing fast and loose with two different courts under oath.

– Paul J. Lipman   

New Rule Governing Which Attorneys May Be Hired For Administrative Adjudications

October 10, 2013

By:   Christopher Wesierski and Patricia Alleborn


In a recent decision, Sabey v. City of Pomona, the Second District of the California Court of Appeals announced a new ruling: “agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter.”

After receiving notice for intent to terminate his employment due to violations of Pomona Police Department’s policies and procedures, Pomona police officer, Sabey, requested an administrative hearing to challenge his termination. Sabey was granted a non-binding arbitration hearing.[1]  The findings and decision of the arbitrator would serve as a recommendation to the City Council who would decide whether or not to adopt the recommendation.

During the hearing, the City hired an attorney, Debra Bray, a partner at Liebert Cassidy Whitmore (LCW), to advocate on behalf of the City. The arbitrator sustained almost all of the Police Department’s findings, except one instance of misconduct, and recommended suspension without pay instead of termination.

After the hearing, the City contacted Peter Brown, partner of LCW and the City’s chief labor negotiator. The City wanted Brown to advise the City Council whether or not to adopt the arbitrator’s decision. Subsequently, LCW erected an ethical wall that inhibited Brown and Bray from discussing the matter and accessing each other’s files. Brown counseled the City Counsel and the City decided to adopt the arbitrator’s factual findings, but rejected it’s recommendation that Sabey be suspended and, instead, the City decided to terminate Sabey’s employment.

On appeal, Sabey argued his right to Due Process was violated because the advocate for the Department and the advisor to the City Counsel were partners at the same firm, LCW. The City, Respondent, argued that Howitt v. Superior Court permits the performance of both roles by the same office as long as an ethical wall is erected preventing the attorneys from engaging from any inappropriate contact. The Appellate Court disagreed with the City and held that the Howitt rule does not apply to attorneys in private law firms. Unlike government attorneys who do not owe each other fiduciary duties, the court reasoned that law partners in a private firm owe each other fiduciary duties of care and loyalty. Thus, when a partner is in the position to review another partner’s work, there is an opportunity for unfairness and bias. Furthermore, the partner who is in the advisory position is incentivized to agree with the result of the partner in their firm in order to enhance the reputation of the firm and acquire new business. While the court did not find evidence of bias in this particular case, the court reasoned that under these circumstances, there is a clear appearance of bias that is not constitutionally tolerable.


Although the Sabey Court considered this question in the context of a government employee fighting termination from employment, the decision impacts all California state agencies, municipalities, and other government entities who conduct administrative hearings. All government entities should be advised to review all of their current matters and ascertain whether or not any of the matters may be in violation of the Sabey decision. Otherwise, states agencies who are not aware of the Sabey decision will be liable for the cost of the appeal. Moreover, any government agencies must now retain multiple firms. This necessitates that government agencies seek out different lawyers from diverse firms in order to comport with Sabey and due process.


As a result of the Sabey decision, code enforcement officers who violate due process may now also be susceptible to UNRUH Civil Rights Act claims (“UNRUH”). UNRUH makes it unlawful for any government authority to engage in a practice of conduct by law enforcement officers that deprives any person of their rights and privileges guaranteed by the Constitution of the United States. (CC §52.3(a)). Code enforcement officers come within the purview of UNRUH because code enforcement officers have the authority to enforce the law. For example, a code enforcement officer with the Department of Environmental Services can issue an administrative order mandating that a property owner abate a public nuisance.[2]  Code enforcement officers also can comply with administrative law. For example, the property owner, in the context of the aforementioned public nuisance case, has a right to request an administrative hearing to challenge the administrative order mandating abatement. As a result of Sabey, the City must hire attorneys from diverse firms to act as an advocate for the City and an advisor to the hearing officer. If the City does not comply with Sabey, then the code enforcement officer deprives the Respondent’s right to Due Process. Because the UNRUH Act makes it unlawful for code enforcement officers to violate any privileges or rights guaranteed by the constitution, then it follows that a Sabey due process violation would necessarily indicate that code enforcement officers violated UNRUH.

Arguably, UNRUH liability for code enforcement officers is a stretch because UNRUH is directed at preventing discrimination on the basis of sex, race, religion, color, national origin, medical condition, disability, sexual orientation and marital status. Nevertheless, Civil Code section 52.3 explicitly prohibits anyone with law enforcement authority from engaging in conduct that deprives a person of their Constitutional rights, privileges, or immunities. Due Process is a right guaranteed by the Fourteenth Amendment in the Constitution of the United States. Accordingly, if a code enforcement officer does not comply with Sabey, then the code enforcement officer deprives a person of their Due Process rights, and consequently violates UNRUH.


1   Non-binding arbitration hearings are similar to evidentiary hearings; an arbitrator considers the evidence, determines the facts, and issues a decision determining liability, legal rights, or the issue at hand. This decision is called the “award.” The award is non-biding and only serves as an advisory opinion that the City may choose to adopt.

2   In counties where the municipal code provides for nuisance abatement, the county appoints a code enforcement officer and grants the officer the authority of the law to act on conditions she determines is a public nuisance. When a code enforcement officer believes there is a legal basis for a nuisance, a code enforcement officer issues a complaint to any party with a real interest in the property. The Respondent has a right to request an administrative hearing. The City contracts with a private attorney to advocate on behalf of the code enforcement officer. The Respondents, the owner(s) of the property, would have an opportunity to contest the findings and present mitigating evidence.

The California Supreme Court Confirms the Trial Courts’ Gatekeeper Responsibility to Exclude Expert Testimony

May 22, 2013

By:  Mary E. Bevins

Previously, California trial courts were not required to perform the rigorous expert testimony gatekeeping responsibility as adopted by a majority of state courts and federal courts. However, in a 2012 decision, Sargon Enterprises Inc. v. University of Southern California (2012) 55 Cal. 4th 747 (Sargon), the California Supreme Court analyzed recent United States Supreme Court decisions which support the premise that trial court judges should not allow the admissibility of expert testimony if that testimony cannot meet standards of reliability and relevance. In Sargon, the Court re-iterated that under California law, trial courts have a substantial “gatekeeping” responsibility regarding expert testimony stating, “under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony.” Id at page 771.

Plaintiff, Sargon Enterprises, patented a dental implant. In 1996, Sargon contracted with defendant, University of Southern California (USC), to conduct a clinical study. In 1999, Sargon sued USC for breach of contract. Even though Sargon was very small and had annual profits that peaked at only $101,000 in 1998, Sargon’s damage expert projected that it would become an industry leader. The expert opined that Sargon’s lost profits as a result of USC’s breach were comparable to the profitability of industry leaders, between $200 million – $1 billion. Before trial, during an in limine hearing, the trial court excluded Sargon’s expert testimony. The Court of Appeals reversed, and USC appealed to the California Supreme Court.

The California Supreme Court reversed again, affirming the trial court’s original ruling, excluding Sargon’s expert economist. After an extensive discussion of plaintiff’s expert’s methodology and shortcomings, the California Supreme Court found no error with the exclusion of the expert’s testimony. It agreed that plaintiff’s expert’s methodology was too speculative to be admissible. In so doing, the Supreme Court clarified that Evidence Code sections 801 and 802 required a rigorous and intrusive new role of trial judges to determine whether a contested expert opinion should be heard by a jury. The Court established that state courts, like federal courts, also have a “gatekeeper” role in deciding the admissibility of expert testimony based on the expert’s reasoning.

The California Supreme Court emphasized the fact that under existing law, irrelevant and speculative matters are not a proper basis for an expert opinion. The Supreme Court reiterated the trial court’s gatekeeping function to exclude these type of opinions under California Evidence Code §§ 801 and 802, stating, “We construe this to mean that the matter relied upon must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation and conjecture is inadmissible.” Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564. Id at page 770.

Further the Court stated: “As we recently explained, the expert‘s opinion may not be based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors . . . . [¶] Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) (People v. Richardson (2008) 43 Cal.4th 959, 1008; accord, People v. Moore (2011) 51 Cal.4th 386, 405.)” Id at page 770.

The Court cited to federal court decisions, such as Daubert, Joiner, and Kumho, suggesting federal decisions may be relied on in California in this context.  [General Electric Co. v. Joiner (1997) 522 U.S. 136, 142; Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137, 141; Daubert v. Merrill Dow Pharmaceuticals (1993) 509 U.S. 579.]  Citing to Evidence Code section 802, it also noted that “the [trial] court may also inquire into the expert’s reasons for his opinion.” But the Court went further, extending the application of Section 802 to constitutional, statutory, and decisional law.

In Sargon, the California Supreme Court stated that Evidence Code section 802, “expressly permits the court to examine experts concerning the matter on which they base their opinion before admitting their testimony. The reasons for the experts’ opinions are part of the matter on which they are based just as is the type of matter. Evidence Code section 801 governs judicial review of the type of matter; Evidence Code section 802 governs judicial review of the reasons for the opinion.” Sargon at page 771.

Stating further, Section 802 also allows a court to: “inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.’ [Citation.] ” Sargon at page 771.

Opportunities have been opened to clear out overreaching, speculative and irrelevant expert testimony that normally may have been allowed in by trial courts. The impact on cases can be significant and beneficial, especially if practitioners’ requests for pre-trial hearings are utilized wisely.

Corenbaum Clarifies and Expands on Howell – Full Amount of Past Medical Services Billed is not Relevant to the Amount of Non-Economic Damages or Reasonable Value of Future Damages

May 1, 2013

By:  David M. Ferrante

The California Court of Appeal, Second Appellate District, Division Three, recently issued an important opinion in Corenbaum v. Lampkin (WL1801996 Cal.App. 2 District, 2013), addressing two issues left open in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541.

In Howell the California Supreme Court held a plaintiff claiming medical expense damages “whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial.”  Howell left open whether evidence of billed, but unpaid, medical expenses could be admissible for other purposes including (1) future economic damages and (2) non-economic damages (e.g., general damages and pain and suffering.

A plaintiff’s pecuniary loss is limited to the amount paid or incurred for past medical services, so a plaintiff cannot recover damages in excess of that amount.  Limiting a plaintiff’s recovery in this manner does not contravene the collateral source rule, which precludes evidence that an insurer or other source independent of the tortfeasor, paid for the plaintiff’s medical care, but does not preclude evidence of the amount that the medical provider accepted as full payment.  The collateral source rule does not apply to losses that the plaintiff never incurred, such as the “negotiated rate differential” (i.e. the difference between the amount billed and the amount accepted by provider as full payment).  Consequently, the amounts accepted as full payment by the provider is admissible (subject to laying proper foundation) so long as there is no mention of who paid the bills.

Based upon the above premise, Corenbaum held the following:

1.         Evidence of the full amount billed for a plaintiff’s medical care is not relevant to the determination of a plaintiff’s damages for past medical expenses and therefore is inadmissible for that purpose if plaintiff’s medical providers had contracted to accept a lesser amount as full payment.  In contrast, evidence of the amount accepted by the providers as full payment does not violate the collateral source rule and is admissible provided that the source of the payment is not disclosed to the jury;

2.         Evidence that the reasonable value of the medical services exceeded the amount paid is irrelevant and inadmissible on the issue of the amount of damages for past services, because this testimony would only serve to confuse a jury, particularly in light of the fact that costs for medical services varies greatly from provider to provider;

3.         Since the full amount billed for past medical services in not relevant to a determination of the reasonable value of past medical services, then evidence of same is likewise irrelevant to a determination of the reasonable value of future medical services;

4.         Evidence of the full amount billed for past medical services cannot support an expert opinion on the reasonable value of future medical services because the full amount billed for past medical services is irrelevant as to value.  If an expert was to base his opinion as to reasonable value of future services on the full amount billed for past services, this would inevitably lead to the introduction of evidence concerning the circumstances by which a lower price was negotiated, and this would violate the evidentiary aspect of the collateral source rule.

 5.         Translating pain and anguish into dollars is arbitrary and a judge cannot give a jury a standard to go by.  He can only tell them to allow such amount as in their discretion they may consider reasonable.  Thus, evidence of the full amount billed is inadmissible for the purpose of providing plaintiff’s counsel an argumentative construct to assist a jury in its difficult task of determining non economic damages AND is inadmissible for the purpose of proving non-economic damages.