Ehrlich Law Firm wins reversal of judgment in favor of McDonalds in suit by cashier shot at drive-through window

Jeanette Thompson was a 16-year old cashier working at a McDonalds’ franchise store in the Crenshaw District of Los Angeles. She was pulled through the window at the drive-through and shot. In her suit, she claimed that McDonalds’ Corporation controlled the design of the drive through, and failed to install proper protective features.

The trial court granted summary judgment for McDonalds’. The Ehrlich Law Firm obtained a reversal, and the matter will now be proceeding to trial. Thompson v. McDonalds’ Corp., 2009 WL 1653443 (2d District, Unpublished)

Ehrlich Law Firm convinces U.S. District Judge to reconsider summary judgment

Ehrlich Law Firm convinces U.S. District Judge to reconsider summary judgment for insurer in $8.2 million bad-faith lawsuit, allowing case to go to trial. Lexington Insurance withdrew its defense of an obstetrician in a medical-malpractice lawsuit, and refused to settle the claim within its $1 million policy limits, resulting in an adverse judgment of $8.2 million. In the resulting bad-faith lawsuit, the district court granted summary judgment to Lexington in May 2009.

Ehrlich Law Firm wins affirmance of bad-faith claim against insurer

In May 2002, Darrel Prindle murdered his ex-wife, Jessica, and shot her sister and her sister’s children. The survivors filed a lawsuit against Jessica’s estate for negligently failing to warn them of Darrel’s prior threats and dangerous behavior. Jessica’s homeowner’s insurer, Travelers, refused to defend the estate in the lawsuit, and refused to settle it for the $100,000 policy limits. The estate later settled with the plaintiffs, who obtained a judgment against it in excess of $7 million, and then assigned its rights to the plaintiffs. The plaintiffs then sued Travelers on the assigned claims. Travelers sought summary judgment arguing that the plaintiffs’ bad-faith claim was defective because they had failed to file a timely claim against Jessica’s estate.

In a published decision, the Court of Appeal affirmed the trial court’s denial of the summary judgment motion, holding that Travelers was estopped to assert the failure to file a timely probate claim, by virtue of its refusal to defend. In re: Estate of Prindle, 173 Cal.App.4th 119 (3d Dist. 2009). The Ehrlich Law Firm then successfully opposed Travelers’ petition for review in the California Supreme Court.

Ehrlich Law Firm wins landmark ruling against Blue Cross of California

Judge David Mintz had been fighting lung cancer for years. When it recurred, his doctors said his only chance was a treatment called radio-frequency ablation (“RFA”). Blue Cross was the third-party administrator of Mintz’s CalPERS health plan. Blue Cross denied the claim for RFA on the grounds that it was excluded as experimental. But it failed to notify Mintz that under state law, the plan was required to pay for experimental treatment if an independent medical review determined it would be more beneficial for the patient than conventional treatment. Mintz was unable to obtain RFA, and died while his lawsuit was pending. The trial court dismissed his case on demurrer, and the Court of Appeal reversed, finding that third-party administrators can be held liable for their negligent administration of the plan. Mintz v. Blue Cross of California, 172 Cal.App.4th 1594 (2d Dist. 2009).

Ehrlich Law Firm convinces Ninth Circuit to submit certified question to California Supreme Court

Scott Minkler appealed the district court’s order granting summary judgment on his claim against Safeco Insurance Company under a homeowner’s liability policy. Minkler’s claims arose out of Safeco’s refusal to defend Betty Schwartz, whose son David molested Minkler. Safeco denied coverage because of an exclusion in its policy for claims arising from the acts of “an” insured, because David was a resident of Betty’s home, and hence an insured under her policy. The issue in the case is the proper construction of a provision in the Safeco policy stating that “This insurance applies separately to each insured.” The Ninth Circuit, at the Ehrlich Firm’s request, has asked the California Supreme Court to decide the meaning of that provision. Minkler v. Safeco Ins. Co., 561 F.3d 1033 (9th Cir. 2009).

Ehrlich Law Firm wins reversal of nonsuit against plaintiff in dental malpractice trial

Denise Easterby’s neck was injured while she was undergoing dental treatment. During his deposition, her treating surgeon testified that he was unable to say that the dental accident was the cause of her injury. This was because he had been provided with a medical record that erroneously stated she had been involved in an automobile accident at the same time. After the deposition, he learned that the record was in error, and there was no auto accident. Easterby’s counsel notified the defense that the doctor had changed his mind, and would testify at trial that the dental accident caused her injury. The defense did not re-depose the doctor, but convinced the trial court to exclude his new opinion, resulting in a nonsuit.

The Ehrlich Law Firm obtained a reversal, convincing the appellate court that because the defense had been put on notice of the doctor’s new opinion, they could not exclude it at trial under Kennemur v. State of California, 133 Cal.App.3d 907 (1982). Easterby v. Clark, 171 Cal.App.4th 772 (2009).

Code of Civil Procedure — Section 901-914

901. A judgment or order in a civil action or proceeding may be reviewed as prescribed in this title. The Judicial Council shall prescribe rules for the practice and procedure on appeal not inconsistent with the provisions of this title.

902. Any party aggrieved may appeal in the cases prescribed in this title. A party appealing is known as an appellant, and an adverse party as a respondent.

902.1. In any case in which a notice was required pursuant to subdivision (e) of Section 664.5, the Attorney General shall have the right to intervene and participate in any appeal taken therefrom. These rights shall apply regardless of whether the Attorney General participated in the case in the trial court. However, the Attorney General has no direct right to appeal. If the Attorney General elects not to intervene and participate in the appeal, he or she shall file a statement with the Legislature and the Judicial Council stating the reason or reasons for the decision not to intervene and participate in the appeal. This statement may be in the form of an annual report to the Legislature and Judicial Council and that report shall be a matter of public record.

903. In the event of the death of any person who would, if still alive, have a right of appeal, either the attorney of record representing the decedent in the court in which the judgment was rendered, or the executor or administrator of the estate of the decedent, may file a notice of appeal therefrom within the time within which the decedent could have filed such a notice if he had survived.

904. An appeal may be taken in a civil action or proceeding as provided in Sections 904.1, 904.2, 904.3, and 904.5.

2010 California Rules of Court — Rule 8.130. Reporter’s transcript

(a) Notice

(1) If in the notice designating the record on appeal under rule 8.121, the appellant elects to use a reporter’s transcript, in that notice the appellant must specify the date of each proceeding to be included in the transcript, and may specify portions of designated proceedings that are not to be included.

(2) If the appellant designates less than all the testimony, the notice must state the points to be raised on appeal; the appeal is then limited to those points unless, on motion, the reviewing court permits otherwise.

(3) If the appellant serves and files a notice designating a reporter’s transcript, the respondent may, within 10 days after such service, serve and file a notice in superior court designating any additional proceedings the respondent wants included in the transcript.

(4) If the appellant elects to proceed without a reporter’s transcript, the respondent cannot require that a reporter’s transcript be prepared. But the reviewing court, on its own or the respondent’s motion, may order the record augmented under rule 8.155 to prevent a miscarriage of justice. Unless the court orders otherwise, the appellant is responsible for the cost of any reporter’s transcript the court may order under this subdivision.

(5) Any notice of designation must be served on each known reporter of the designated proceedings.

(Subd (a) amended effective January 1, 2008; previously amended effective January 1, 2005, and January 1, 2007.)

(b) Deposit or substitute for cost of transcript

(1) With its notice of designation, a party must deposit with the superior court clerk the approximate cost of transcribing the proceedings it designates, using either:

(A) The reporter’s written estimate; or

(B) An amount calculated at $325 per fraction of the day’s proceedings that did not exceed three hours, or $650 per day or fraction that exceeded three hours.

(2) If the reporter believes the deposit is inadequate, within 15 days after the clerk mails the notice under (d)(1) the reporter may file with the clerk and mail to the designating party an estimate of the transcript’s total cost, showing the additional deposit required. The party must deposit the additional sum within 10 days after the reporter mails the estimate.

(3) Instead of a deposit, the party may substitute the reporter’s written waiver of a deposit, a copy of a Transcript Reimbursement Fund application filed under (c)(1), or a certified transcript of the designated proceedings. A reporter may waive the deposit for-and a party may submit a certified transcript of-a part of the designated proceedings, but such a waiver or transcript replaces the deposit for only that part.

(Subd (b) amended effective January 1, 2010; previously amended effective January 1, 2007.)

2010 California Rules of Court — Rule 8.124. Appendixes

(a) Notice of election

(1) Unless the superior court orders otherwise on a motion served and filed within 10 days after the notice of election is served, this rule governs if:

(A) The appellant elects to use an appendix under this rule in the notice designating the record on appeal under rule 8.121; or

(B) The respondent serves and files a notice in the superior court electing to use an appendix under this rule within 10 days after the notice of appeal is filed and no waiver of the fee for a clerk’s transcript is granted to the appellant.

(2) When a party files a notice electing to use an appendix under this rule, the superior court clerk must promptly send a copy of the register of actions, if any, to the attorney of record for each party and to any unrepresented party.

(3) The parties may prepare separate appendixes, but are encouraged to stipulate to a joint appendix.

(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2005, January 1, 2007, and January 1, 2008.)

2010 California Rules of Court — Rule 8.66. Extending time because of public emergency

(a) Emergency extensions of time

If made necessary by the occurrence or danger of an earthquake, fire, or other public emergency, or by the destruction of or danger to a building housing a reviewing court, the Chair of the Judicial Council, notwithstanding any other rule in this title, may:

(1) Extend by no more than 14 additional days the time to do any act required or permitted under these rules; or

(2) Authorize specified courts to extend by no more than 30 additional days the time to do any act required or permitted under these rules.

(Subd (a) amended effective January 1, 2007.)

(b) Applicability of order

(1) An order under (a) must specify whether it applies throughout the state, only to specified courts, or only to courts or attorneys in specified geographic areas, or applies in some other manner.

(2) An order of the Chair of the Judicial Council under (a)(2) must specify the length of the authorized extension.

(c) Additional extensions

If made necessary by the nature or extent of the public emergency, the Chair of the Judicial Council may extend or renew an order issued under (a) for an additional period of:

(1) No more than 14 days for an order under (a)(1); or

(2) No more than 30 days for an order under (a)(2).

(Subd (c) amended effective January 1, 2007.)

Rule 8.66 amended and renumbered effective January 1, 2007; repealed and adopted as rule 45.1 effective January 1, 2005.

Advisory Committee Comment. The Chief Justice of California is the Chair of the Judicial Council (see rule 10.2).

2010 California Rules of Court — Rule 8.108. Extending the time to appeal

(a) Extension of time

This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.

(Subd (a) adopted effective January 1, 2008.)

(b) Motion for new trial

If any party serves and files a valid notice of intention to move for a new trial, the time to appeal from the judgment is extended for all parties as follows:

(1) If the motion is denied, until the earliest of:

(A) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;

(B) 30 days after denial of the motion by operation of law; or

(C) 180 days after entry of judgment.

(2) If any party serves an acceptance of a conditionally ordered additur or remittitur of damages pursuant to a trial court finding of excessive or inadequate damages, until 30 days after the date the party serves the acceptance.

(Subd (b) amended and relettered effective January 1, 2008; adopted as subd (a).)

2010 California Rules of Court — Rule 8.104. Time to appeal

2010 California Rules of Court Rule 8.104. Time to appeal Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: (1) 60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled “Notice of Entry” of judgment or a file-stamped copy […]

2010 California Rules of Court — Rule 8.100. Filing the appeal

(a) Notice of appeal

(1) To appeal from a superior court judgment or an appealable order of a superior court, other than in a limited civil case, an appellant must serve and file a notice of appeal in that superior court. The appellant or the appellant’s attorney must sign the notice.

(2) The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed. The notice need not specify the court to which the appeal is taken; the appeal will be treated as taken to the Court of Appeal for the district in which the superior court is located.

(3) Failure to serve the notice of appeal neither prevents its filing nor affects its validity, but the appellant may be required to remedy the failure.

(b) Fee and deposit

(1) Unless otherwise provided by law, the notice of appeal must be accompanied by a $655 filing fee under Government Code sections 68926 and 68926.1(b), an application for a waiver of court fees and costs on appeal under rule 8.26, or an order granting such an application. The fee should be paid by check or money order payable to “Clerk, Court of Appeal”; if the fee is paid in cash, the clerk must give a receipt.

2010 California Rules of Court — Rule 8.121. Notice designating the record on appeal

(a) Time to file

Within 10 days after filing the notice of appeal, an appellant must serve and file a notice in the superior court designating the record on appeal. The appellant may combine its notice designating the record with its notice of appeal.

(b) Contents

(1) The notice must:

(A) Specify the date the notice of appeal was filed.

(B) Specify which form of the record of the written documents from the superior court proceedings listed in rule 8.120(a)(1) the appellant elects to use. If the appellant elects to use a clerk’s transcript, the notice must also designate the documents to be included in the clerk’s transcript as required under rule 8.122(b)(1).

(C) Specify whether the appellant elects to proceed with or without a record of the oral proceedings in the trial court. If the appellant elects to proceed with a record of the oral proceedings in the trial court, the notice must specify which form of the record listed in rule 8.120(b) the appellant elects to use. If the appellant elects to use a reporter’s transcript, the notice must designate the proceedings to be included in the transcript as required under rule 8.130.

(2) If an appellant intends to raise any issue that requires consideration of the record of an administrative proceeding that was admitted in evidence, refused, or lodged in the superior court, the notice must also request that this administrative record be transmitted to the reviewing court under rule 8.123.

(c) Copy to the reviewing court

The clerk must promptly send the reviewing court a copy of any notice filed under this rule.

Rule 8.121 adopted effective January 1, 2008.

Ehrlich Law Firm wins affirmance of $15 million verdict

On July 14, 2008, the U.S. Court of Appeal for the Ninth Circuit affirmed a $15 million jury verdict on behalf of three Los Angeles Police Department officers who had been wrongfully accused by the department of corruption. In Harper v. City of Los Angeles, 533 F.3d 1010 (9th Cir. 2008), the court held that the evidence supported the jury’s verdict that the officers’ constitutional rights were violated, and that the award of $5,000,001 to each was not excessive. Jeffrey I. Ehrlich briefed and argued the appeal for the officers.