A few new appellate decisions before Labor Day

The appellate world has been rather busy lately.  Consider the following:

      In Stinnett v. Tam, 2011 Cal.App. LEXIS 1153, the Fifth Appellate District, the plaintiff challenged the MICRA statute in Civil Code 3333.2, which limits "non-economic" damages to $250,000 in any action against a health care provider based on professional negligence.  The court reduced a $6 million non-economic damage award.  The plaintiff argued the reduction violated her right to equal protection, as well as her right to a jury trial.  The court found these arguments to be without merit and affirmed the judgment.

      Okay, I couldn't resist In re Forchion, 2011 Cal.App. LEXIS 1144, in which the Second Appellate District was presented with the issue of whether an individual can change his name to the name of his web site, including the .com.  The petitioner, Robert Edward Forchion, Jr., who manages a Rastafarian temple in Los Angeles and operates a medical marijuana dispensary, wanted to change his name, consistent with his national reputation, to  He first tried to change his name in New Jersey, but that state said no.  The court noted that a name change could last indefinitely, but petitioner might lose his domain name for various reasons.  If someone obtained that domain name later, then petitioner's personal name might result in confusion.  I'll bet that is the first time a name change has been denied for a business reason.  The court stated, "In sum, personal names and domain names should not overlap; they belong in distinct realms.  Domain names were created for use on the Internet and should be limtied to assisting a user in finding a desired Web site.  By the same token, we should not treat a peson as part of a domain."  The court also indicated that a name change to NJWeedman, without the .com, would meet the same result.

     In Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, a case that has been litigated and appealed on several occasions, the parties were back in court after a jury awarded the plaintiff $13.8 million in punitive damages.  A jury had previously awarded $850,000 in compensatory damages.  The court upheld the punitive damage award based on Philip Morris's conduct in intentionally deceiving the public for several decades concerning the adverse health effects of cigarettes, formulating them to make the cigarettes more addictive, and aggressively advertising to youths.  The award is approximately 16 times the compensatory award and was not considered constitutionally excessive.  This case will probably give plaintiff's attorneys some hope that not all courts are moving toward a 1:1 ratio with compensatory damages.

       In Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, 2011 Cal.App. LEXIS 1117,  the plaintiff sued over the proposed approval of a new shopping center.  While the appeal was pending, the project was abandoned and the appeal became moot.  In considering whether to abandon the appeal, the court of appeal held a dismissal of an appeal constitutes an affirmance of the lower court's ruling.  Maybe not such a good idea as the judgment could have an effect on future litigaiton.  The better solution was to reverse based on mootness, with directions to the trial court to dismiss the complaint.

That's enough for now.  Time to start the Labor Day Weekend.  Enjoy!






Howell v. Hamilton Meats arrives with a dull thud

Personal injury attorneys have been anxiously awaiting for the California Supreme Court's decision in Howell v. Hamilton Meats & Provisions, Inc. (2011), No. S179115.  That decision arrived on August 17, 2011 and the collective groans of plaintiff's attorneys could be heard across the state. 

The issue in Howell was whether an injured person may recover an undiscounted amount in a medical bill as economic damages where the provider accepts less than full payment pursuant to a preexisting contract with the injured person's health insurer.  Under the collateral source rule, the plaintiff may recover the amounts her insurer actually paid.  The court held that the collateral source rule does not apply to preclude economic damages which the plaintiff never incurred or were never paid to the providers. 

Here are a few snippets:

1.  The Court agreed with the Hanif court that a plaintiff may recover as economic damages no more than the reasonable value of the medical services and is not entitled to recover the reasonable value if the actual loss was less.  Damages must be both reasonable and incurred, and this rule applies in the context of situations where plaintiff's health insurer has obtained a discount for the services or payments made.  Thus, the plaintiff is entitled to recover the lesser amount of (1) the amount paid or incurred for medical services, and (2) the reasonable value of the services.

2.  Plaintiff did not "incur" liability for the full amount of the medical bills because the discounts were in place pursuant to a pre-existing agreement that existed prior to plaintiff's injury.  Since the plaintiff never incurred the full bill, plaintiff should not recover it as an economic loss.  (The result would be different if the plaintiff incurred the full liability but it was reduced as a gratuitious undertaking.)

3.  The court discussed the pricing of medical services, noting that even the "full" price does not necessarily reflect the real value of these services.  It concluded that the tortfeasor's payment of the amounts actually paid will not result in a windfall to the tortfeasor nor will it deter a tortfeasor from engaging in risky conduct.

4.  The plaintiff still will receive the benefit of her foresight in obtaining insurance coverage and in paying premiums.  Had she been uninsured, she would have had to pay the higher amount, but because her insurer had the power to negotiate a lower sum, she benefited from it.  The "negotiation" was not done as a result of her injuries caused by the tortfeasor, but as the result of the insurer's commercial advantage and way of doing business.  In fact, it is the insurance company, and not the plaintiff, who benefits from the negotiated price differential.

5.  The court concluded by stating it was not altering the collateral source rule as articulated in Helfend and the Restatement.  The court concluded the situation involved in Howell  does not come within the collateral source rule.

6.  The premiums paid by the plaintiff are inadmissible at trial.

7.  If the jury hears evidence of the amount accepted as full payment by the medical provider but awards a greater sum as damages for past medical expenses, the defendant can move for a new trial on the grounds of excessive damages.  In granting the new trial motion, the trial court may permit the plaintiff to choose between accepted the reduced damages or having a new trial.

Justice Klein dissented, concluding that Howell should be allowed to recover the reasonable value or market value of medical services, as determined by an expert, putting her in the same situation as an uninsured plaintiff or in cases where the medical services had been donated.  She argued that "Howell is left in a worse postiion than an ininsured individual or one who was a donee of medical sercies, persons who are entitled to recover the full reasonable value of their medical care."  She also opined that Howell obtained the benefit of coverage by virtue of her payment of premiums and she was entitled to that benefit.  As has been argued in the past, Justice Klein also believes that the majority rule represents a windfall to the torfeasor, who is underdeterred in his or her future conduct.  Conversely, the plaintiff would not obtain a windfall as recovery was limited to the reasonable cost of care. 

The opinion suggests that only uninsured persons pay the full amount of medical bills, while some others may receive a "gift" after injury.  Those persons may be entitled to receive the full amount of the hospital bills; however, their recovery would be limited by the reasonableness of those costs.  In addition, uninsured persons who were unsuccessful at trial would ultimately pay the highest bill without redress. 

Justice Klein also notes that California has aligned itself with the minority view in the United States.  She notes that the majority of courts allow a plaintiff to recover the reasonable value of their expenses without limitation to the amount they pay or that third parties pay on their behalf.  (Rest. 2d Torts, sec. 924.)

The opinion is rather long and covers a lot of territory.  I have tried to summarize some of the principles here, but perhaps anyone practicing in this area should take the time to read Howell. 



Is an order denying a motion to reconsider appealable?

In Powell v. County of Orange, 2011 Cal.App. LEXIS 1024, the plaintiff appealed from an order denying his motion for reconsideration, which sought reconsideration of his earlier motion to set aside an order dismissing his action in the trial court for lack of prosecution.  The appellate court dismissed the appeal for lack of appellate jurisdiction.

The opinion was published for two reasons:  (1) to let attorneys know that the Court was joining with other appellate courts in holding an order denying a motion for reconsideration is not appealable, and (2) an order of dismissal, including a minute order not signed by the judge, does not qualify as a judgment under Code of Civil Procedure section 581d unless it is in writing, signed by the trial judge, and filed with the court.

In Powell, the plaintiff filed a civil rights action against the County of Orange and Orange County Sheriff, including two of its deputies.  Several years later, the trial court scheduled an order to show cause re dismissal due to plaintiff's lack of prosecution.  Plaintiff's attorney failed to show up at the hearing and the trial court issued a minute order dismissing the action.  The minute order was not signed and there was no formal, signed order prepared thereafter.

About seven months later, plaintiff's attorney filed a motion to set aside the "judgment" due to the attorney's fault in failing to "properly keep track of this case" and not responding to discovery.  The motion was denied.  New counsel for the plaintiff filed a motion to reconsider, which was also denied.  The plaintiff appealed from the order denying the motion for reconsideration.

The Court of Appeal (Fourth Appellate District, Division Three) in Santa Ana held that an order denying a motion for reconsideration is not appealable, even when the motion is based on new facts or law.  The opinion notes that Code of Civil Procedure section 1008, governing such motions, is being amended, effective January 1, 2012, to expressly provide an order denying a motion for reconsideration is not appealable, although if the order that was the subject of the motion is appeaalable, the denial of the motion for reconsideration can be reviewed by an appeal from that order.  (Opn. pgs. 5-6.) It did not help plaintiff that he labeled the motion alternatively as a motion to set aside the dismissal.  The motion was asking the trial court to re-decide the same previous motion.

The appellate court also held that an unsigned minute order was ineffective as a judgment of dismissal under Code of Civil Procedure section 581d, which requires a signed, written order that is filed with the court.  None was prepared in this case.  This error put plaintiff in the odd position, almost two years after the case was dismissed, of bringing a premature appeal as there was no judgment to appeal from.  In addition, the motion to set aside was also considered premature as no judgment had been entered that could be set aside by the trial court.

Even though the plaintiff had wasted a lot of money and time in bringing various motions and an appeal, he was now in the position of bringing a premature appeal.  Once the case goes back down to the superior court, a proper written order of dismissal will probably be prepared and the plaintiff will now have the ability to file an appeal from that judgment.  If he has the will and money to do so.


Creative language in legal documents

Okay, it's Friday morning and the sun is streaming through my window as I write this.  It's hard to be serious.  Apparently some attorneys and judges also find it hard to be serious.  The question arises as to how far the writer should go in using humor or other colorful language.

For instance, Mr. George Swinger (yes, that is his name; I don't make this stuff up) filed a notice of appeal with the United States District Court in the Western District of Washington.  In his notice, he writes:

I hereby am informing you that I am appealing the asshole Ronald B. Leighton's decision in this matter. . . You have been hereby served notice.  You are not getting away with this shit that easy."

The docket in this case shows that the notice of appeal was filed on July 12, 2006, but in December, the court issued an order that the appeal was not taken in good faith and revoked appellant's in forma pauperis status, requiring him to pay the filing fees.  The appeal was ultimately dismissed due to failure to prosecute.

In a separate matter, Kissel v. Schwartz & Maines & Ruby Co., that was before the Kenton Circuit Court in Kentucky, Judge Martin Sheeham vacated a jury trial after the parties reached a settlement.  He writes:

"And such news of an amicable settlement having made this Court happier than a tick on a fat dog because it is otherwise busier than a one-legged cat in a sand box and, quite frankly, would have rather jumped naked off of a twelve foot step ladder into a five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory;"

As one item in the order, the court ordered the clerk to "engage the services of a structural engineer to ascertain if the return of this file to the Clerk's office will exceed the maximum strctural load of the floors of said office."

Enjoy the weekend!





A review of An Appeal to Reason

If you are interested in what trial lawyers have to say about my book, check out Mitch Jackson's video review  

Mitch is one of the trial lawyers around and I think I know why.  First, he is interested in people and cares about what happens to them.  This week I received a phone call from a potential client, who complained bitterly about his attorney.  His complaints were not so much about the attorney's trial performance.  No, they were about how this client felt when he worked with his attorney.  For instance, the attorney seemed unfamiliar with his case and had to ask basic questions, including what the client did for a living.  The client believed the attorney was not unprepared and was just going through the motions.  Rather than being relieved to have a legal representative, the man seemed nervous about trusting his own attorney.  Mitch and I have talked about his cases, and it seems obvious that he cares about his client.

Second, Mitch is always open to improving and learning.  That means being open to working with an appellate attorney as part of his team.  I have to admit, sometimes I feel like I am in a battle with trial counsel.  Perhaps the trial attorney doesn't want another attorney analyzing his or her performance, or feels that as the trial attorney, he or she got the job done and an appeal is just another hoop to go through before getting paid.  The appellate attorney is not looking for ways to criticize the trial attorney; they must work together as a team.

Mitch is also putting himself out there in the new age of social media.  I have talked to many attorneys who are so resistant to having a web site, a Facebook account, Twitter, or even the new Google +.  They are unapologetic about their insistence on old technology.  I tell these attorneys that most of my clients have viewed my web site and read my blog long before they come in to see me.  In fact, I believe if an attorney doesn't have some presence on the Internet, they just might lose credibility, unless the potential client is also one who fears social media. 

I can still remember when attorneys could finally advertise and many were opposed to it.  Now you can find attorneys advertising in very creative ways, some good, some bad.  Attorneys have to keep up with the times.  Some of these devices can even make us more efficient and free us to spend more time on marketing or our cases.  Or better yet, they can free us to take the day off and go to the beach.