Watch my Interview on Appellate Tips for Trial Attorneys on Wednesday, May 23, 2012 at 3:00 p.m. at Spreecast.

For those who are wondering where I've been, well, I just recently came back from a two-week trip to Italy.  I then had to sort through over 2,200 photographs, which are now on my photo site atwww.PhotosbyDonna.smugmug.com.  Please, take a look at them.  Don't worry, there are not 2,200 photographs.  I managed to reduce the size to about 300.   After I did that, I had to put aside my job as a photographer and once again returned to being an appellate attorney.

Of recent interest, the California Supreme court recently granted review in one of my cases, City of Lake Forest v. Lake Forest Wellness Center and Collective.  My case is in a "grant and hold" position, meaning that all further briefing is deferred pending a decision in City of Riverside v. Inland Empire Patient's Health & Wellness Center, Inc., Case No. S198638.  If you have been hiding under a rock for the last couple of months, that case involves the question whether cities can absolutely ban medical marijuana collectives and dispensaries.  Our case involved the same issue; however, it will be held pending a decision in the Riverside case, and then it will probably be remanded to the Court of Appeal for a decision consistent with that case.  A grant of review has the effect of depublishing a published Court of Appeal decision, so that all of those patients associations and dispensaries that ran down to the local city's business department cannot use the companion case of City of Lake Forest v. Evergreen Holistic Collective as proof they are entitled to a business license.

For those of you interested in hearing some of my tips to trial lawyers on protecting their appeals at the trial level, tune in to Spreecast on Wednesday, May 23, 2012 at 3:00 p.m., when I will be interviewed by Orange County trial lawyer, Mitch Jackson.  You can watch, or even join in, at http://www.spreecast.com/events/donna-bader.  A more consumer friendly site is SocialTalk.tv.  My Spreecast event will be listed in the upcoming events along with a short intro: http://www.SocialTalk.tv or here: http://socialtalktv.wordpress.com/upcoming-events/.

Preparing for Oral Argument

Law students often ask me how I prepare for oral argument.   The obvious answer is to be fully prepared and knowledgeable about the record but there are other ways of preparing.   A few days before the hearing, I will have a tentative presentation, which I will practice several times so that my presentation is smooth and natural.  Believe it or not, it requires "rehearsals" to appear spontaneous.  I also try to anticipate questions and practice answering them.  In fact, I try to think about the questions that I hope the justices don't ask, and then just assume that is where my case is weak and I need to be ready to address them. 

I also try to focus on getting physically ready for the hearing.  After spending hours looking at the computer and performing last minute research, my neck and beck can get pretty tight.  I try to keep up a regimen of exercise, especially yoga and stretching.  If your muscles are tight, it is hard to be relaxed at the podium.  The day before oral argument, I try not to work too hard, preferring to do something fun to get my mind off the case.  If I can, I will arrange for a deep tissue massage.  What a tremendous boost!  If your muscles are relaxed and stretched, it is hard to tighten them up on short notice.  I feel looser, more relaxed, and even sleep better.  I also do warm-up exercises for my throat, such as singing, so that the words don't stick.  (Fortunately, I limit my singing to the shower.)  Just before my case is called, I will suck on a menthol cough drop, which keeps my throat moist.  (A great tip.)  I read that licorice can also help, so maybe I will try that too.   Just before oral argument, I try to picture my dog Casper, a snowy white American Eskimo, because I know that no matter what happens at oral argument, he will love me just the same.  And yes, I have my little good luck charms.  Not a rabbit's foot, but jewelry or accessories given to me by my boyfriend and grandmother.  So, when I step up to the lectern, I  feel surrounded by love and support.  It may seem silly to some, but it works for me.

New amendments affecting motions for summary adjudication

Without much fanfare, Code of Civil Procedure section 437c was amended effective January 1, 2012.  Prior to these new amendments, a motion for summary adjudication was limited to eliminating causes of action, affirmative defenses, claims for damages, such as punitive damages, and issues of duty.  The primary question in such motions was whether it completely disposed of a cause of action, affirmative defense, or issue of duty. (Code Civ. Proc., § 437c(f).)
            Now attorneys may seek summary adjudication on a legal issue or claim for damages that is not dispositive, especially if it will promote settlement or streamline the trial.   Unfortunately, the new procedure requires cooperation between the attorneys.  First, the motion may be brought only upon stipulation of the parties whose claims or defenses are put at issue and a prior determination and order of the court that the motion "will further the interests of judicial economy, by reducing the time to be consumed in trial, or significantly increase the ability of the parties to resolve the case by settlement."  (Code Civ. Proc., § 437c(s).)
            Before the motion can be filed, the parties are required to submit a joint stipulation to the trial court that clearly sets forth the issue or issues to be adjudicated with a declaration from each stipulating party that the motion will serve the goals noted above.  The trial court is then required to advise the parties whether the motion may be filed, unless the court extends the time for good cause.  If the court declines permission to proceed, the parties may request and the court is required to conduct an informal conference to further evaluate the stipulation, but no new papers may be filed.
            The motion has specific language that must be included in the notice of motion.  (Code Civ. Proc., § 437c(s)(4).  The joint stipulation must be served on all parties to the action, and a nonstipulating party may object within 10 days.  (Code Civ. Proc., § 437c(s)(6).
            I have not heard of anyone using this new procedure but I have read a few comments on it.  Here are my thoughts:
            1.  Bringing the motion does require some cooperation between the attorneys and more work to get the motion filed.  Getting opposing attorneys to do anything "jointly" is difficult in many cases, although with cooperation, the attorneys can agree that a decision on an important issue may promote settlement negotiations.
            2.  Plaintiff's attorneys usually try to avoid the dreaded (and predicted) motion for summary judgment.  Instead, they put their efforts into finding triable issues so the case can be heard by a jury.  This is especially true if they are working on a contingency basis.  Defense attorneys would love to carve off a bit here and there of a plaintiff's case.  For them, these motions are billable events.  Essentially, the motion allows for a mini-court trial and plaintiff's attorneys may prefer to a jury trial on all claims.
            3.  The procedure would seem to avoid a potential motion in limine down the road and closer to trial.  While appellate courts chastise parties and trial courts for using motions in limine as a replacement for motions for summary judgment and adjudication, they are often used in this manner.  One benefit in using this new procedure is that you get a ruling long before trial and it may help with trial preparation or settlement negotiations.
            These new amendments are not permanent, but will be repealed on January 1 2015 unless a later enacted statute deletes or extends that date.  (Code Civ. Proc., § 437c(u).)

New appellate case holds cities can't ban medical marijuana dispensaries

The old adage, "When it rains, it pours," can now be applied to legal cases as well.   Cases concerning medical marijuana are being decided by the courts of appeal.  In many of those cases, the attorneys sought review before the California Supreme Court but their petitions were denied.  Now we have the Supreme Court taking up four cases, although it appears one case, Traudt v. City of Dana Point, was recently dismissed.   In Traudt, a case previously published by the Court of Appeal, Fourth Appellate District, Division Three, in Santa Ana, the appeal was dismissed after the court concluded an individual medical patient lacked standing to assert her rights to medical marijuana, and more specifically, from a dispensary in Dana Point.  Now that the appeal has been dismissed, the case is no longer citable law.

Right in the middle of my preparations to argue the Lake Forest appeals, the California Supreme Court surprised a lot of people by granting review inTraudt, Pack v. Superior Court, City of Riverside v. Inland Empire Patient's Health & Wellness Center and People v. GC Holistic, Inc..  The Court of Appeal (the same court that decided Traudt) issued its opinion in City of Lake Forest v. Evergreen Holistic Collective, 2012 Cal.App. LEXIS 239,  and my appeals, City of Lake Forest v. Lake Forest Wellness Center & Collective and Independent Collective of Orange County, which referred to Evergreen and unpublished..

In what some have described as "splitting the baby," the court came out with a decision that is both pleasing and disappointing to everyone.  This court has faced many similar lawsuits, probably read dozens of briefs on the subject, and listened to dozens of oral arguments.  So, it was no surprise when the court concluded its opinion by stating, "We recognize our conclusions today may disappoint the parties in this case and the opposing sides in California's ongoing debate concerning medical marijuana:  dispensaries, because they may wish to operate independently of cultivation sites, and some cities and other local governments, because they want to ban dispensaries altogether.  We emphasize that these are policy outcomes outside our power to reach or grant because we are constrained by the voters' and the Legislature's enactments.  Although courts will continue to resolve disputes over the meaning of the CUA and MMPA, policy choices about the role of medical marijuana in this state, including any changes or adjustments that may be made, rest ultimately with the people and their representatives."  (Id. at p. 79.)

The decision reversed a preliminary injunction requested by the City of Lake Forest, sending the case back to the superior court.  The court concluded that an absolute ban contradicted and is preempted by state law.  However, and this is a big however, while cities may not ban medical marijuana dispensaries altogether, the Legislature authorized dispensaries only at sites where medical marijuana is 'collectively or cooperatively . . . cultivate[d].'"  (Id. at p. 1-2.)  That means that when the City requests a preliminary injunction, it must show the dispensary does not grow its marijuana onsite "or otherwise failed to comply with applicable state medical marijuana law or permissible location regulations."  (Id. at pp. 2-3.)

Now before you start scratching your head, you might wait until this appeal is considered by the California Supreme Court.  The City of Lake Forest has already voted to instruct its attorneys to file a petition for review.    That petition can be filed within a 10-day window starting on March 31, 2012.  I would anticipate that review will be granted.  Cities are already facing applicants for licenses who come armed with a copy of this decision.  One might expect the cities to delay action until they hear from the Supreme Court.  As an alternative, they may pass restrictive regulations dealing with on-site cultivation.  While in theory it could be argued that the case is somewhat favorable to medical marijuana proponents, the difficulties of growing on-site will prevent many dispensaries from being able to comply.  In a few months, this dilemma may be moot and we will be facing ongoing legal battles as we wait for a decision from the Supreme Court.

Appellate court holds plaintiffs not required to comply with C.C.P. 425.13 when suing a health care plan

Appellate court holds plaintiffs not required to comply with C.C.P. 425.13 when suing a health care plan

by Donna Bader

In  Kaiser Foundation Health Plan, Inc. v. Superior Court (Rahm) (2012) ___ Cal.App.4th ____, Anna Rahm and her parents sued Kaiser Foundation Health Plan and two Kaiser health care providers, alleging they had devised an insurance compensation scheme that induced Kaiser's physicians to deny medical services to plan members.  They alleged Kaiser's system allowed its contracted physicians the responsibility of deciding whether to give insureds benefits under their contracts.  Part of that decision must be based in part upon cost savings to Kaiser.  These cost savings are translated into rewards and bonuses to the physicians who withhold treatment. Plaintiffs alleged four causes of action and prayed for punitive damages for breach of implied covenant of good faith and fair dealing and intentional infliction of emotional distress.
Anna was suffering from severe pain, and although she and her parents requested an MRI, the Kaiser health care providers refused, resulting in a three-month delay.  When it was finally done, the MRI indicated Anna had an "aggressive mass" in her pelvis and a biopsy revealed she was suffering from a fast-growing osteosarcoma.  That delay allowed the cancer to spread and Anna, who underwent chemotherapy, lost her right leg and portions of her pelvis and spine.
The defendants filed a motion to strike the punitive damages, pursuant to Code of Civil Procedure section 425.13(a).  The trial court denied the motion and defendants filed a petition for writ of mandate.  The petition was summarily denied by the appellate court.  Defendants then filed a petition for review in the California Supreme Court.  While the petition was pending, the plaintiffs dismissed their punitive damages claims.  The Supreme Court granted reviewed and ordered the appellate court to hear the matter.
The appellate court concluded plaintiffs were not required to comply with Code of Civil Procedure section 425.13 because the statute did not apply to plaintiffs' claims against Kaiser Foundation Health Plan and because plaintiffs had dismissed their punitive damage claims against defendants.  Pursuant to Code of Civil Procedure section 425.13, a plaintiff cannot include a prayer for punitive damages unless the trial court enters an order allowing an amended pleading that includes such a prayer.  The plaintiffs are generally required to show there is a substantial probability they will prevail on their claims.  The trial court concluded plaintiffs' claims were related to insurance bad faith, rather than medical malpractice, and therefore, section 425.13 did not apply.
The court in Kaiser Foundation Health Plan, Inc. concluded section 425.13 does not apply to a health care service plan.  It found the language in the statute was unclear.  As a consequence, the court turned to the legislative history of section 425.13, which established it was only intended to apply to medical care providers.  This holding was not changed because the decisions were made by Kaiser health care providers.  The Health Plan was being sued because it provided financial incentives to providers to deny expensive medical treatment. Thus, the trial court did not err in refusing to strike the prayer for punitive damages against the Health Plan.