Court of Appeal Reverses a Judgment Sustaining a Demurrer by Blue Cross
Coast Plaza Doctors Hospital v. Blue Cross of California (B205892, May 11, 2009)
11 p.
According to the allegations in the complaint, a patient checked into an out-of-network hospital for previously scheduled surgery. Because the Hospital was out-of-network the patient made an advance cash payment for the surgery. The surgery went smoothly and is not at dispute in this litigation. However, a few days after the surgery the patient suffered a life threatening respiratory distress which required her to be put on a ventilator and moved to the Hospital's ICU. (This was emergency treatment.)
Once the patient was stabilized the Hospital contacted the Independent Practice Association (IPA) that Blue Cross had contracted with to provide medical care for the patient, in order to arrange for the transfer of the patient to an in-network provider. The IPA refused to approve the transfer or to be involved in any decisions regarding the patient's medical care. The patient spent two months in the Hospital's ICU before being transferred.
The Hospital sued Blue Cross for slightly under $600,000 for the emergency care that it provided to the patient.
Blue Cross successfully demurred on the ground that because the patient's health insurance was an employee benefit, the Hospital's action against it was preempted by ERISA. The Hospital elected not to amend its complaint and appealed from the judgment that followed.
The Court of Appeal held that the Hospital's action was based on Health and Safety Code section 1371.4, and that section 1371.4 falls within ERISA's saving clause (ERISA section 514(b)(2)(A)) as state law regulating insurance. It reversed the judgment and remanded for further proceedings.
Monday, May 11, 2009
Monday, April 20, 2009
Life Insurance is Not Covered by the Consumer Legal Remedies Act
Supreme Court Affirms Decision But Narrows the Holding From All Insurance to Just Life Insurance
Fairbanks v. Superior Court (April 20, 2009, S157001)
10 p.
At the time that the Court of Appeal decision in Fairbanks came out I praised it for its thoroughness and suggested that the issue would not have to be revisited by the California courts anytime soon. I was completely wrong because the California Supreme Court granted review of the decision. Today the Supreme Court issued its opinion.
A unanimous Supreme Court affirmed the Court of Appeal decision but narrowed its holding from all insurance to just life insurance. In the decision's only footnote the court explained that although the parties, the trial court and the Court of Appeal all took the broad view that the issue was whether insurance is a service for the purpose of the CLRA, the Supreme Court had "narrowed the issue to focus only on life insurance."
Like the Court of Appeal, the Supreme Court found the statutory language determinative and held that life insurance is not covered by the CLRA.
Fairbanks v. Superior Court (April 20, 2009, S157001)
10 p.
At the time that the Court of Appeal decision in Fairbanks came out I praised it for its thoroughness and suggested that the issue would not have to be revisited by the California courts anytime soon. I was completely wrong because the California Supreme Court granted review of the decision. Today the Supreme Court issued its opinion.
A unanimous Supreme Court affirmed the Court of Appeal decision but narrowed its holding from all insurance to just life insurance. In the decision's only footnote the court explained that although the parties, the trial court and the Court of Appeal all took the broad view that the issue was whether insurance is a service for the purpose of the CLRA, the Supreme Court had "narrowed the issue to focus only on life insurance."
Like the Court of Appeal, the Supreme Court found the statutory language determinative and held that life insurance is not covered by the CLRA.
Wednesday, April 15, 2009
California Supreme Court Hears Hughes v. Pair
Oral Argument in Sexual Harassment Case Was Heard on April 7
During its April 7th Oral Argument session the California Supreme Court heard arguments in the sexual harassment action Hughes v. Pair. In that action Suzan Hughes, the mother of a minor child whose trust was administered by Christopher Pair, sued Pair for sexual harassment under Civil Code section 51.9. The Court of Appeal had held that the words "pervasive and severe" have the same meaning in 51.9 as they do in FEHA and Title VII.
Section 51.9 applies specifically to a relationship with a professional when the plaintiff is unable to easily terminate the relationship. It thus always refers to a first party sexual harassment claim rather than the employer-ratification argument that is usually made in FEHA and Title VII actions.
The Supreme Court's discussion is sure to be interesting to those who follow sexual harassment law.
During its April 7th Oral Argument session the California Supreme Court heard arguments in the sexual harassment action Hughes v. Pair. In that action Suzan Hughes, the mother of a minor child whose trust was administered by Christopher Pair, sued Pair for sexual harassment under Civil Code section 51.9. The Court of Appeal had held that the words "pervasive and severe" have the same meaning in 51.9 as they do in FEHA and Title VII.
Section 51.9 applies specifically to a relationship with a professional when the plaintiff is unable to easily terminate the relationship. It thus always refers to a first party sexual harassment claim rather than the employer-ratification argument that is usually made in FEHA and Title VII actions.
The Supreme Court's discussion is sure to be interesting to those who follow sexual harassment law.
Tuesday, January 27, 2009
California Supreme Court Reverses Patel Decision
Contract Was Enforceable Because Settled Law Provided a Time for Payment
Patel v. Liebermensch (December 22, 2008, S156797)
9 p. decision
The California Supreme Court unanimously reversed the Court of Appeal decision in Patel v. Liebermensch, agreeing with the trial court that the parties had entered into an enforceable contract. The absence of terms specifying the time and manner of payment did not make a real estate contract too uncertain to enforce.
The Court pointed out that the manner of payment was not actually in dispute, that the only missing term was the time of payment. It is settled law that if a contract for the sale of real property specifies no time of payment, a reasonable time is allowed.
The Court of Appeal had improperly relied on the parties' conduct after the dispute arose to conclude that an agreement had not been reached when the contract was signed. When the contract was executed it contained easily ascertainable essential terms. Neither party could render it unenforceable by seeking to change those terms.
Note: This was an action for specific performance of a real estate option contract for a condominium unit in San Diego. When Patel exercised the option in July, 2004 one of his reasons was because he wanted to take advantage of the mortgage interest rates available at that time. It would be interesting to know how the parties feel about this transaction now given the dramatic changes in real estate values and mortgage availability since the time that this suit was filed.
Patel v. Liebermensch (December 22, 2008, S156797)
9 p. decision
The California Supreme Court unanimously reversed the Court of Appeal decision in Patel v. Liebermensch, agreeing with the trial court that the parties had entered into an enforceable contract. The absence of terms specifying the time and manner of payment did not make a real estate contract too uncertain to enforce.
The Court pointed out that the manner of payment was not actually in dispute, that the only missing term was the time of payment. It is settled law that if a contract for the sale of real property specifies no time of payment, a reasonable time is allowed.
The Court of Appeal had improperly relied on the parties' conduct after the dispute arose to conclude that an agreement had not been reached when the contract was signed. When the contract was executed it contained easily ascertainable essential terms. Neither party could render it unenforceable by seeking to change those terms.
Note: This was an action for specific performance of a real estate option contract for a condominium unit in San Diego. When Patel exercised the option in July, 2004 one of his reasons was because he wanted to take advantage of the mortgage interest rates available at that time. It would be interesting to know how the parties feel about this transaction now given the dramatic changes in real estate values and mortgage availability since the time that this suit was filed.
Tuesday, August 19, 2008
Family Court to Remain Open in Riverside County
Dismissal of Misdemeanors Because No Courtroom Was Available is Upheld
People v. Cole, Appellate Division, Riverside County (July 25, 2008, APP-004096)
Civil procedure, in the form of civil trials, has been the intermittent collateral damage in the court congestion crisis in Riverside County. The crisis itself arises out of the backlog of criminal cases in the county and has led to some conflict between the District Attorney and the Superior Court Judges. Now, in a development that brings no comfort to those engaged in traditional civil actions, but that may well be in the best interests of the people of Riverside County, a three judge panel has upheld the decision of a trial court judge not to give precedence to criminal cases in the family, probate, traffic, small claims and juvenile courts.
Because these were appeals from misdemeanor charges the decision was made by the Appellate Division. The three judge panel was made up of specially assigned Orange County Superior Court Judges because all of the Riverside County judges had disqualified themselves on the grounds that the issue was one of their court's policy.
Late in the afternoon on Friday, January 26, 2007 two misdemeanor prosecutions came before the court on the last day that they could be brought to trial. During an extended discussion with the deputy district attorney about possible available courtrooms, the trial judge pointed out that because of the backlog in criminal cases, the court had completely eliminated all civil trials.
Since January, 2007 that backlog has been significantly reduced by a strike team of judges sent to Riverside by Chief Justice George. However the strike team is now gone and the funding for seven new judgeships has been postponed for a year because of the state budget crisis. In July, 2008 twenty-two criminal cases were dismissed because there was no judge available to hear them. For those seeking civil trials, the situation remains bleak.
People v. Cole, Appellate Division, Riverside County (July 25, 2008, APP-004096)
Civil procedure, in the form of civil trials, has been the intermittent collateral damage in the court congestion crisis in Riverside County. The crisis itself arises out of the backlog of criminal cases in the county and has led to some conflict between the District Attorney and the Superior Court Judges. Now, in a development that brings no comfort to those engaged in traditional civil actions, but that may well be in the best interests of the people of Riverside County, a three judge panel has upheld the decision of a trial court judge not to give precedence to criminal cases in the family, probate, traffic, small claims and juvenile courts.
Because these were appeals from misdemeanor charges the decision was made by the Appellate Division. The three judge panel was made up of specially assigned Orange County Superior Court Judges because all of the Riverside County judges had disqualified themselves on the grounds that the issue was one of their court's policy.
Late in the afternoon on Friday, January 26, 2007 two misdemeanor prosecutions came before the court on the last day that they could be brought to trial. During an extended discussion with the deputy district attorney about possible available courtrooms, the trial judge pointed out that because of the backlog in criminal cases, the court had completely eliminated all civil trials.
Since January, 2007 that backlog has been significantly reduced by a strike team of judges sent to Riverside by Chief Justice George. However the strike team is now gone and the funding for seven new judgeships has been postponed for a year because of the state budget crisis. In July, 2008 twenty-two criminal cases were dismissed because there was no judge available to hear them. For those seeking civil trials, the situation remains bleak.
Thursday, December 13, 2007
What Do You Do If Opposing Counsel Inadvertantly Produces a Priviledged Document?
As Soon As You Realize What It Is - Stop Reading. Then Give It Back. Right Away.
Rico v. Mitsubishi Motors Corporation (Dec. 13, 2007, S123808)
16 p. opinion
42 Cal.4th 807
The rule that the Supreme Court sets forth in this decision is not a complicated one. If a lawyer receives a document that clearly appears to be privileged and it is "reasonably apparent that the materials were provided or made available through inadvertence," he or she should examine the document no further than is essential to determine that the document is privileged. Then he or she should immediately notify the sender of the situation so that the parties can either resolve it by agreement or turn to the court for any justified judicial intervention.
This approach protects the attorney-client privilege and the work product doctrine, prevents large document productions from becoming slower and more laborious than they already are, and fulfills the attorney's obligations to the bar, the judiciary and the administration of justice.
What shouldn't the lawyer do if he realizes after a minute or two that he is reading a work product document? He shouldn't make multiple copies of it and give them to his co-counsel and experts. He shouldn't discuss the contents of the document with each of his experts. He shouldn't use the document to impeach one of the opposing parties' experts during that expert's deposition.
What happens if he does? In this case the attorney showing such poor judgment represented the plaintiffs. As a result of his unethical behavior, the plaintiffs' attorneys and experts were disqualified.
(The plaintiffs, because they had not been told the contents of the document, were given time to obtain new counsel. This contrasts with the result for the plaintiffs in Stephen Slesinger, Inc. v. The Walt Disney Company whose intimate knowledge of the contents of illegally obtained documents tainted their case beyond repair.)
What if the lawyer is slow to realize that the document is privileged? That's a shame but not an excuse. The rule establishes an objective standard under which the court must decide when reasonably competent counsel would have realized the document was privileged.
Justice Corrigan wrote the opinion for a unanimous court.
Rico v. Mitsubishi Motors Corporation (Dec. 13, 2007, S123808)
16 p. opinion
42 Cal.4th 807
The rule that the Supreme Court sets forth in this decision is not a complicated one. If a lawyer receives a document that clearly appears to be privileged and it is "reasonably apparent that the materials were provided or made available through inadvertence," he or she should examine the document no further than is essential to determine that the document is privileged. Then he or she should immediately notify the sender of the situation so that the parties can either resolve it by agreement or turn to the court for any justified judicial intervention.
This approach protects the attorney-client privilege and the work product doctrine, prevents large document productions from becoming slower and more laborious than they already are, and fulfills the attorney's obligations to the bar, the judiciary and the administration of justice.
What shouldn't the lawyer do if he realizes after a minute or two that he is reading a work product document? He shouldn't make multiple copies of it and give them to his co-counsel and experts. He shouldn't discuss the contents of the document with each of his experts. He shouldn't use the document to impeach one of the opposing parties' experts during that expert's deposition.
What happens if he does? In this case the attorney showing such poor judgment represented the plaintiffs. As a result of his unethical behavior, the plaintiffs' attorneys and experts were disqualified.
(The plaintiffs, because they had not been told the contents of the document, were given time to obtain new counsel. This contrasts with the result for the plaintiffs in Stephen Slesinger, Inc. v. The Walt Disney Company whose intimate knowledge of the contents of illegally obtained documents tainted their case beyond repair.)
What if the lawyer is slow to realize that the document is privileged? That's a shame but not an excuse. The rule establishes an objective standard under which the court must decide when reasonably competent counsel would have realized the document was privileged.
Justice Corrigan wrote the opinion for a unanimous court.
Monday, December 10, 2007
Review Roundup III
Patel v. Liebermensch (S156797)
I did not go out on any limbs when writing about this decision so you will have to take my word for it that I thought it was a close call. The Supreme Court will be addressing the question of whether the time and manner of payment are essential terms for a real estate purchase option contract. If so, then if they are absent no contract has been formed.
This is an important legal issue, but this case is not one that has potential to cause any noticeable effect in the way that real estate transactions are handled in California. The vast majority of such transactions are already conducted much more formally than the transaction that led to this lawsuit.
I did not go out on any limbs when writing about this decision so you will have to take my word for it that I thought it was a close call. The Supreme Court will be addressing the question of whether the time and manner of payment are essential terms for a real estate purchase option contract. If so, then if they are absent no contract has been formed.
This is an important legal issue, but this case is not one that has potential to cause any noticeable effect in the way that real estate transactions are handled in California. The vast majority of such transactions are already conducted much more formally than the transaction that led to this lawsuit.
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