California Medical Malpractice Expert Witness Requirement

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Unlike the specific requirement in some states that the filing of a complaint for damages based upon professional medical negligence be accompanied by an affidavit or certificate of merit, such is not the case in California. Irrespective of the lack of a specific requirement, expert medical evaluation and testimony is almost always required in California to establish the requisite standard of care for the particular physician/defendant, and to determine whether the physician, healthcare provider, hospital, or other medical provider failed to perform services in conformity with the standard of care. The medical expert generally chosen to evaluate or testify in the medical negligence action must be familiar with, practice in, or be experienced in some manner in the particular specialty of the alleged negligent health care provider.

The earlier a case can be presented for attorney and expert evaluation, the better the potential for a proper decision on proceeding forward with the case, and greater success in recovery of damages for our clients. Early and competent evaluation and analysis of medical negligence cases are an important part of the process followed by the attorneys at Heiting & Irwin.

Heiting & Irwin, APLC has been representing individuals and families with medical malpractice claims for many years. Free consultations on all types of medical malpractice and personal injury claims are available at the Law Offices of Heiting & Irwin.

Published By: Attorney Dennis Stout

DMV Win at a Negligent Operator Hearing for Road Rage

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Rob Collier, California Drivers Advocates

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Case History: California Drivers Advocates was engaged to defend a client whose driver license had been suspended because the Department of Motor Vehicles had identified him as a Negligent Operator because of his involvement in a “Road Rage” incident.

Our 60 year old client owns and operates a business in San Diego County that services much of Southern California. He directly employs 15 people who rely upon him for their very livelihood. The nature of our client’s business requires him to drive extensively. Without the privilege to drive, our client’s business would close and many good people would suffer. Our client’s driving record is perfectly clean and he has absolutely no criminal history. He is a good man and a contributing member of society.

On a sunny afternoon in May 2016, our client was driving a work truck from his business in San Diego to a new job site in Rancho Mirage. He was in a great mood because a new job meant an injection of revenue into his business. Our client was driving northbound on the 15 freeway in the area of Temecula. As he approached the 15/215 split, our client merged onto the 215 freeway north and occupied the fast lane. Traffic was stop and go and never exceeded 30 mph.

About 100 yards north of the freeway interchange, our client was shocked to look into his left-side mirror and see a small red sedan cross through the “gore point” and begin driving on the shoulder of the 215 freeway. Our client came to a stop behind the car in front of him and watched as the driver of the red sedan attempted to insert himself into the tiny gap between the cars. Traffic was not moving very well so it took some time for a gap to open and when it did, the driver didn’t just gradually move into the lane, he dove into the lane directly in front of our client’s truck and slammed on the brakes causing our client to rear-end him at slow speed.

Over the course of the next several minutes, the driver of the red sedan repeatedly drove on the shoulder beside our client. He positioned his vehicle in such a way to prevent our client from exiting the freeway. At one point, the passenger of the red sedan actually reached out and slapped the side mirror of our client’s vehicle. The driver then “dove” into the lane directly in front of our client a second time and a second collision occurred. At this point, our client was able to pull into the center median and stop. When our 60 year old client stepped out of his truck with his camera in hand, he was immediately attacked and battered by the 25 year old driver of the other car.

When the responding CHP Officer arrived, he immediately handcuffed both drivers. Because the statements from the two drivers were in conflict with one another, the CHP Officer could not determine the truth so he referred both drivers to the DMV for a Re-Examination of their driving privilege, accusing them both of being involved in an act of “Highway Violence.”

Our client initially appeared at the Driver Safety Office in San Diego for his re-examination. He was not prepared for the event and the hearing officer too much of his testimony out of context. When the re-examination ended, our Client’s driver license was suspended.

Our client initially sought out attorneys in the San Diego area. He actually engaged an attorney who held himself out as a “DMV Specialist” but just days after hiring the attorney, our client lost all confidence in him because the attorney simply ignored many of our client’s concerns. Expanding his search for DMV Defense Experts, our client found us on the internet an engaged us immediately.

DMV’s Position: The California DMV’s position was crystal clear. The department is granted the power to monitor the driving habits and history of anyone driving in California and to identify any person as a Negligent Operator if their driving indicates they are negligent or incompetent.

California Vehicle Code section 13800 determines, “The department may conduct an investigation to determine whether the driving privilege of any person to operate a motor vehicle should be suspended or revoked….”

The California DMV takes a very dim view of people who commit acts of Road Rage because of the increased possibility of injury or death associated with such acts. The DMV will not hesitate to suspend a person’s license and then challenge the driver to rebut the action.

Our Defense: When the client retained us, we immediately went to work relieving the previous attorney of all obligation in the defense of our Client. We contacted the San Diego Driver Safety Office to insert ourselves into the case and then worked to change the hearing to the San Bernardino Driver Safety Office so the hearing was in an entirely new venue. We were astonished to discover that the previous attorney had not asked for a “Stay of Suspension,” so we immediately went to work restoring our client’s privilege to drive until the outcome of the hearing.

Early in our investigation, we learned that our client’s driving history had been remarkably clean for years. We also learned that he suffers with a series of medical disorders that must be addressed at the hearing.

During weeks of preparation, we issued subpoenas for traffic accident reports, 911 Audio Recordings, Dispatch Logs, Criminal History Reports and the live testimony of the CHP Officer. We collected photographic evidence and prepared diagrams. We collected relevant medical evidence to establish that our client was physically and mentally capable of safe driving. Our greatest challenge was preparing for the direct examination of the CHP Officer and the direct examination of our client.

From October 2016 to January 2017, we appeared three times at the Driver Safety Office to present our case. All of our affirmative evidence was accepted by the hearing officer without objection and we directly examined the CHP Officer for nearly two hours. Our client testified with great credibility and accepted full responsibility for his actions and identified the things he would do differently in the future. We worked very hard to demonstrate that our client was first and foremost a victim and that all of our evidence supported that.

At the conclusion of the Negligent Operator Hearing, the hearing officer took the matter under submission. One week later, we received official notice that the hearing officer had terminated the suspension of our Client’s driver license and had issued an Order of Set Aside. This completely dismissed the allegation as erroneous. Essentially, this returned our client to full driving privileges, without restriction and no period of suspension appeared on his record.

We were able to save our client’s driver license and thus he is driving for work and supporting his employees.

Call CDA Today. We can reverse the DMV’s action.

The DMV Defense Experts at California Drivers Advocates include former police officers, DMV Hearing Officers, Investigators and Scientists. Our training, our experience and our reputation provide any driver, including commercial drivers, the best opportunity to win their Administrative Hearing. If the DMV is working to suspend or revoke your driving privilege for any reason, give us a call. Visit our website here.

If the DMV is your problem…….California Drivers Advocates is your solution!

UK Injury Law Blawg Gives Clarity to Confusing Industry

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The Fearless Advocate Team

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www.personalinjuryclaimsblawg.com is a blawg based in the UK that publishes high quality content from solicitors in England, Scotland, Northern Ireland and Wales. The blawg is well maintained and easy to navigate, new content rolls up to the Home page where you can access the most recent articles, social media posts and links to selected lawyer’s content. There is also a fairly robust UK injury lawyer directory that helps connect Users to local personal injury lawyers serving the United Kingdom. Also unique about the website is that you can post a question to a personal injury lawyer by using a contact form.

If you are interested in submitting content to this blawg the guidelines are simple:

Submit high quality, personal injury related subject matter.
Specify the governing area of law
Posts need to be over 500 words in length
Include creative media when available (pics, video, etc.)
Include a short biography

Upon submission, your article will be reviewed and edited by former lawyers and if approved for publication will be promoted through their Twitter feed with over 12,000 followers: @WardBlawg & @PIClaimsBlawg.

Removal from State Court to Federal Court

By

Nathan Mubasher

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Removing a case from state court to federal court is the topic of this article. The most common grounds for removing a case from a state court to federal court are that the complaint filed in the state court case involves a federal question as specified in 28 U.S.C. section 1441(a) or diversity jurisdiction as specified in 28 U.S.C. Code section 1332.

ADVANTAGES OF REMOVING A CASE TO FEDERAL COURT

The most powerful advantage of removing a case from state court to federal court is that once a defendant has properly complied with all provisions for removal the jurisdiction of the state court is immediately terminated unless and until the case is remanded by the district court. The state court cannot proceed any further and any orders or judgments issued by a state court after removal and before remand are void ab initio.

“… [T]he State court shall proceed no further unless and until the case is remanded.” See 28 U.S.C. § 1446(d); see also Ackerman v. ExxonMobil Corp. (4th Cir. 2013) 734 F3d 237, 249–250 (any postremoval action by state court is void ab initio).

The state court may resume jurisdiction only if and when the case is remanded by the federal court. See Allstate Ins. Co. v. Sup.Ct. (Wickham) (1982) 132 Cal. App. 3d 670, 676 (no power to resume if federal court dismisses rather than remands); see also Murray v. Ford Motor Co. (5th Cir. 1985) 770 F2d 461, 463 (state court has no power to set aside default judgment after removal).

And there is no specific order required of the federal court to complete the removal.

The removal is effected automatically by defendant filing the requisite documents and giving the required notice (above). See 28 U.S.C. § 1446(e); see also Rollwitz v. Burlington Northern Railroad (D MT 1981) 507 F.Supp. 582, 584.

REQUIREMENTS FOR REMOVING A CASE TO FEDERAL COURT

The United States Code imposes several requirements that must be met for removing a case from state court to federal court. The most important requirement is that the defendant must file the notice of removal within 30 days from being served with the complaint.

28 U.S.C. § 1446 states in pertinent part that,

“(a) Generally.— A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) Requirements; Generally.—

(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.”

The defendant must then comply with the provisions of Title 28 U.S.C. 1446(d) which states that, “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” (Emphasis added).

The defendant must first file the notice of removal with the United States District Court, than serve notice on all adverse parties and finally file a copy of the notice with the clerk of the State court. Another requirement is that all of the defendants who are eligible for removal must sign the removal notice.

In most cases a case filed in state court will be removed to the federal court that has geographical jurisdiction encompassing the state court’s location. For example a case filed in the Superior Court of California, County of Riverside would be removed to the United States District Court, Central District of California Riverside division.

Removing a case from a state court to a federal court is a very powerful tool if it is used in a situation where the complaint clearly involves a federal question or there is no dispute that there is diversity of citizenship between the parties in that they both reside in, or have their principal place of business in, a state other than the state where the case was originally filed.

However it must be stressed that the federal court can remand the case back to state court on its own motion or sua sponte and levy sanctions against any party that removes a case when they do not meet the requirements. And the plaintiff can file a motion for remand with the federal court and ask sanctions as well.

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

Motion for Summary Judgment in California

By

Nathan Mubasher

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A motion for summary judgment in California is the topic of this article. The statutory authorization for a motion for summary judgment in California is found in Code of Civil Procedure section 437c(a)(1) which states in pertinent part that, “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”

A party can also file a motion for summary adjudication along with a motion for summary judgment or in a separate motion. Summary adjudication is appropriate when the moving party can clearly show

There is no triable issue of material fact as to whether a defendant did or did not owe a duty to the other party, and

There is no merit to a claim for punitive damages as no reasonable jury would find clear and convincing evidence of malice, fraud, oppression, or approval by any principal against whom punitive damages are being sought.

Code of Procedure section 473(c) (f)(1) limits summary adjudication motions to four specific types of issues:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

ADVANTAGES OF A MOTION FOR SUMMARY JUDGMENT IN CALIFORNIA

The advantage of filing a motion for summary judgment in California is that if the moving party can provide enough specific facts and evidence to convince the Court that there are no triable issues of material fact they can win their motion for summary judgment and avoid the delay and expense of having to proceed to trial.

California law states that if there are no triable issues of material facts the Court must grant the motion as Code of Civil Procedure section 437c(c) states in pertinent part that, “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

REQUIREMENTS FOR A MOTION FOR SUMMARY JUDGMENT IN CALIFORNIA

California law does impose several strict requirements that must be met in filing a motion for summary judgment.

The party moving for summary judgment must wait until at least 60 days have passed since the general appearance of the party or parties against whom the motion is directed unless the Court orders otherwise pursuant to Code of Civil Procedure section § 437c(a)(1).

The party filing a motion for summary judgment must give a minimum of 75 calendar day’s notice of the hearing on the motion for summary judgment. California law does not specify any statutory procedure for shortening the notice period for a motion for summary judgment.

A motion for summary judgment in California must be heard no later than 30 days before the date of the trial unless the court orders otherwise.

Code of Civil Procedure § 437c(a)(2) states that, “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.”

Code of Civil Procedure § 437c(a)(3) states that, “The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.”

Another important requirement on a motion for summary judgment in California is that the moving party must include what is known as a separate statement of undisputed material facts which lists all material facts that they contend are undisputed. The separate statement must also include a reference to the supporting evidence for each individual material fact.

A motion for summary judgment can be supported by affidavits or declarations, admissions, responses to interrogatories and deposition transcripts.

Code of Civil Procedure § 437c (b)(1) states that,

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.”

BURDEN OF PROOF FOR PARTY FILING A MOTION FOR SUMMARY JUDGMENT

A plaintiff filing a motion for summary judgment must meet their burden of showing that there is no defense to a cause of action and that they moving party has proved each element required for that cause of action which would entitle them to judgment.

Once the plaintiff has met their burden the defendant must then show that a triable issue of material fact or facts exists as to that cause of action or their defense to that cause of action. The defendant cannot just rely on any allegations in their answer but must detail the specific facts showing that a triable issue of material fact exists as to that cause of action or their defense to that cause of action. Thus a plaintiff in a case where all of the facts and evidence obtained during discovery clearly shows that a defendant has no defense to their complaint has a very good chance of winning a motion for summary judgment.

A defendant filing a motion for summary judgment must meet their burden of showing that a cause of action has no merit by showing that one or more elements of a cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant has met their burden the plaintiff must then show that a triable issue of one or more material facts exists as to that cause of action or a defense to that cause of action.

The plaintiff cannot just rely on any allegations in complaint but must detail the specific facts showing that a triable issue of material fact exists as to that cause of action or their defense to that cause of action.

This means that a defendant in a case where all of the facts and evidence obtained during discovery clearly shows that the plaintiff has no case against them has a very good chance of winning a motion for summary judgment.

Code of Civil Procedure § 437c(p)(1) and (2) state that for purposes of motions for summary judgment and summary adjudication,

“(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

(2) A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

An experienced litigation attorney can analyze all of the unique facts and circumstances of any particular case in order to determine if filing a motion for summary judgment is a good strategy.

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

Discovery Methods Used in Litigation in California – Part 2 of 2

By

Nathan Mubasher

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Requests for production of documents and special interrogatories in California are the topic of this article. This article is the second in a two part series that will discuss the various discovery methods utilized in litigation in California. The information in this article only applies to unlimited civil cases in which the amount demanded is more than $25,000.

Requests for Production of Documents:

Serving a request for production of documents is an excellent tool that allows any party to a lawsuit to obtain all documents that support the claims or defenses of the opposing party or parties so that they can be reviewed.

In addition to requesting production of documents a party can also demand production and inspection of documents and tangible things, as well as entering onto land for inspection and other purposes.

The rules governing requests for production of documents are found in Code of Civil Procedure § 2031.010, et seq.

The law in California states that a defendant may propound a request for production of documents at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first. See Code of Civil Procedure § 2031.020.

Requests for production of documents have an important advantage over other discovery methods due to the fact that there is no numerical limit to the number of requests specified in California law. However a party served with excessive requests may seek leave of court to limit the number of requests.

Another advantage of requests for production of documents are that unlike special interrogatories and requests for admission there are no format or content restrictions whatsoever and no restrictions on any preface or instructions that may be included unlike special interrogatories and requests for admission.

The documents request should be limited to any and all documents that might contain relevant information that would assist the requesting party in evaluating the case, preparing for trial, or facilitating a settlement or that might reasonably lead to admissible evidence.

The California courts have ruled that the scope of discovery in California civil litigation is very broad. Any doubts are applied liberally in favor of discovery. And information is considered relevant if it could reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement.

The mere fact that a particular document might not be admissible does not prevent a party from requesting that document on the grounds that information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.

Requests for production and inspection of documents and tangible things are very useful in that they allow a party to review in detail all relevant documents and tangible things that support the opposing party’s claims or defenses.

Special Interrogatories:

Special interrogatories are written questions that are drafted based on a review of a particular case.

Serving special interrogatories is used to require an opposing party to state the facts, witnesses and documents on which their contention or contentions are based so they can be reviewed. Depending on the responses to the first set of special interrogatories your attorney may draft and serve another set of special interrogatories.

The rules governing special interrogatories are found in Code of Civil Procedure § 2030.010, et seq.

The law in California states that a defendant may propound special interrogatories at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first. See Code of Civil Procedure § 2030.020.

There is a numerical limit of thirty five (35) on the number of special interrogatories. However if a supporting declaration stating that any additional interrogatories are warranted due to the complexity of the case and other certain factors is attached, then any party may propound more additional special interrogatories. See Code of Civil Procedure §§ 2030.030 and 2030.050.

There are certain format restrictions on special interrogatories. No special interrogatory may contain subparts, or a compound, conjunctive or disjunctive question. See Code of Civil Procedure § 2030.060. This means that a special interrogatory cannot contain part a, b, c, etc., nor can it contain a question with more than one part, and it cannot contain the word “and” which is conjunctive, it also cannot contain the word “or” which is disjunctive. Although many special interrogatories do violate these format rules any party using such a format runs the risk of the opposing party objecting on those grounds.

Retaining an attorney that is experienced in litigation is essential as they will analyze the fact pattern of your particular case and will create special interrogatories designed to obtain information on the facts, witnesses and documents that would assist the requesting party in evaluating the case, preparing for trial, or facilitating a settlement or that might reasonably lead to admissible evidence.

Special interrogatories have an advantage over depositions due to the fact that deposition questions may not ask party deponent to state all facts, list all witnesses and identify all documents that support or pertain to particular contention in that party’s pleadings, although that information is discoverable when sought by written interrogatory.

Link to Part 1 of this Article.

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this web site are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this web site by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this web site should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com