Ehrlich Law Firm wins reversal of defense verdict against stroke victim

Plaintiff Mohamad Harb, MD, suffered a stroke while driving home from the hospital and was involved in a single-car accident. The Bakersfield police officer who responded to the scene was convinced that Dr. Harb was drunk or on drugs, and refused to allow an ambulance to transport him to the hospital. As a result of the delay, Dr. Harb suffered catastrophic brain damage. At trial, the City proposed a confusing, redundant police-immunity instruction, and also convinced the trial court to instruct on comparative fault. This allowed the City to argue that Dr. Harb alone was responsible for his condition, since he failed to take his blood-pressure medicine. The jury returned a defense verdict. In a published opinion, the Court of Appeal reversed.

The Court agreed that it was prejudicial error to give the police-immunity instruction, and that it was also improper for the court to instruct on comparative fault based on Dr. Harb’s pre-treatment negligence. In a case of first impression, the Court held that in California, medical providers and first responders cannot ask the jury to weigh their negligence in providing substandard care against the circumstances that caused the need for care in the first instance. Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 183 Cal.Rptr.3d 59,

20th Century Ins. Co. v. Sup.Ct. (Ahles) (2001) 90 Cal.App.4th 1247

After widespread abuses by the insurance industry were reported, the Legislature extended the statute of limitations for policyholders to file claims arising out the Northridge earthquake. The insurance industry attacked the statute, and Mr. Ehrlich handled the principal briefing and argument on its constitutionality in the appellate courts. After the statute was held constitutional on appeal, Mr. Ehrlich successfully defended that decision in the California Supreme Court and the U.S. Supreme Court, which both declined to hear the decision.

Brehm v. 21st Century Ins. Co. (2008) 166 Cal.App.4th 1225, 83 Cal.Rptr.3d 410

Summary (1) Trial court erred in dismissing insured’s claim on demurrer based on the genuine-dispute doctrine. Application of the doctrine was a factual issue that could not be determined on the pleadings. (2) The insurer’s contractual right to arbitrate uninsured-motorist (“UM”) claims did not relieve it from its obligation to make reasonable efforts to assess and settle the claim, and its failure to make those efforts would support a claim against it for bad faith.

Kotler v. PacifiCare of California (2005) 126 Cal.App.4th 950

Summary – On a motion for summary judgment, it was concluded there was a question of fact whether a delay of six weeks in arranging for a specialist was reasonable, in Kotler the health care services plan denied two appeals by the patient that sought reimbursement for a specialist the patient saw on his own because of the delay. (Id. at pp. 956-957.)

This was the first case in California to hold that an HMO could be sued for bad-faith for making its subscribers wait an unreasonable amount of time for medical treatment.

Smith v. Pacificare Behavioral Health (2001) 93 Cal.App.4th 139

Held that health insurers and HMOs in California were required to comply with California statutes that regulated the use of arbitration clauses in health-insurance contracts. Mr. Ehrlich later convinced other appellate courts to adopt the reasoning of Smith, in Imbler v. PacifiCare of California (2002) 103 Cal.App.4th 567, and Zolezzi v. PacifiCare of California (2003) 105 Cal.App.4th 573.

Jeffrey I. Ehrlich retained as co-counsel in $10 million wrongful-death/products liability appeal

December 2014

After her Toyota Camry was struck in a traffic collision by Olga Bello, Noriko Nori’s foot became trapped behind the brake pedal and was pressing on the accelerator pedal, causing her car to accelerate to 100 mph.

Ms. Nori was unable to control the vehicle and was killed when her car crashed into a tree. The jury awarded her heirs $10 million, and the defendants have appealed.

Ehrlich Law Firm obtains depublication of flawed appellate opinion on “duty”

On February 22, 2012, the California Supreme Court denied review in Gonzales v. Southern California Gas Co., but it also ordered that the decision not be published in the Official Appellate Reports of the state. Hence, the decision in Gonzales will not be citeable as authority in California courts. The appellate opinion in Gonzales held that the property owners were categorically exempt from liability for the placement of fixed objects on their property, even if the object was a natural-gas distribution facility that would cause a conflagration if struck by a car. Jeffrey I. Ehrlich filed a letter requesting depublication of the Gonzales decision on behalf of the Consumer Attorneys of California. It was the only depublication letter filed.

Ehrlich Law Firm wins a published opinion allowing punitive-damage claim to proceed against Kaiser health plan

On February 15, 2012, the California Court of Appeal issued its opinion in Kaiser Foundation Health Plan, Inc. v. Superior Court (Rahm)(2012) __ Cal.App.4th __. The opinion holds that a health-care service plan like Kaiser is not subject to the protection of section 425.13 of the Code of Civil Procedure, which prohibits punitive-damages claims against health-care providers without prior court permission. The court held that section 425.13 did not apply to claims against health plans, which are not considered health-care providers under California law. The court also held that the allegations of the plaintiff’s complaint were sufficient to allege a bad-faith claim against Kaiser in its role as a health plan, and was not merely an attempt to hold the health plan vicariously liable for the medical negligence of the doctors it employed. In the Rahm case, Anna Rahm, then 17, was complaining to Kaiser doctors for months about unrelenting back pain. Her family repeatedly requested that Kaiser perform an MRI to determine the cause of the pain, but the Kaiser physicians delayed. As a result, they did not discovery that Anna was suffering from osteosarcoma, and she lost her leg, and part of her pelvis and spine.

Ehrlich Law Firm wins published opinion affirming denial of motion to disqualify trial counsel

On April 26, 2011, Division 8 of the California Court of Appeal for the Second Appellate District certified for publication its opinion in Liberty National Enterprises, LP v. Chicago Title Ins. Co., no. B222455. In the underlying bad-faith action by Liberty against its title insurer, Chicago Title, Chicago moved to disqualify Liberty’s trial counsel after the second phase of a three-phase trial. Chicago Title argued that Liberty’s trial counsel had formerly represented other insureds to whom Chicago Title had issued coverage, and was improperly using his knowledge of Chicago Title’s claims practice to Chicago Title’s prejudice. The trial court denied the motion to disqualify, finding that it was not brought timely. The Court of Appeal affirmed, finding that it was not timely, and that Chicago Title was unable to show any basis for disqualification.

Read the Decision: Liberty National Enterprises, LP v. Chicago Title Ins. (.pdf)

Reply to Defense Counsels’ Assessment of California Supreme Court Decision in Cabral v. Ralphs

May 2011 – Counsel for Ralphs’ does not acknowledge that their position was that truck drivers and their employers should be immune from civil liability for the driver’s decision to illegally park a 40-ton obstacle on the freeway shoulder so he could eat a banana and have a cup of tea. Under Ralphs’ theory, truck drivers could park their trucks alongside California freeways anywhere they pleased, for any reason, and as long as they were not blocking a traffic lane there would be no recourse if a passing motorist momentarily swerved onto the shoulder and struck the illegally-parked truck.

Ehrlich Law Firm obtains reversal of order dismissing bad-faith and broker-negligence lawsuit

In Koch v. Markel Ins., No. B213610, the Second Appellate District, Division 7, reversed an order sustaining a demurrer to the plaintiff’s claims against his insurance broker and his business insurer for negligence, breach of contract, and bad faith.

Read the Decision (.pdf)

LA Checker Cab Cooperative, Inc. v. First Specialty Ins. Co. Depublication Request Granted

On August 11, 2010, Jeffrey I. Ehrlich, principal of The Ehrlich Law Firm filed a depublication request (L.A. Checker Cab Cooperative, Inc. v. First Specialty Ins. Co.) on behalf of the Consumer Attorneys Association of California. On October 27, 2010, the California Supreme Court granted the request for depublication in the L.A. Checker Cab decision.

Depublication of Court of Appeal decisions by the Supreme Court of California used to be a common practice, but in recent years has become quite uncommon. Fewer than 12 cases a year have been ordered depublished in the last few years.

The significance of the depublication of LA Checker Cab is this: the decision effectively eliminated all insurance coverage in California for any claims of negligent supervision or negligent hiring, because the court held that such claims did not qualify as an “occurrence” that is necessary to trigger coverage. Depublication of the decision means that the decision cannot be cited as precedent in California courts, and therefore California trial courts are not required to follow it.

Read Depublication Request: L.A. Checker Cab Cooperative, Inc. v. First Specialty Ins. Co.; 186 Cal. App. 4th 767, No. B213948 (Second District iv. One); Order published: July 13, 2010

Jeffrey I. Ehrlich obtains remand of bad-faith action removed from state court to federal court

On September 9, 2010, U.S. District Judge Steven V. Wilson of the U.S. District Court for the Central District of California granted a motion to remand filed by Jeffrey I. Ehrlich for Shernoff, Bidart & Echeverria, LLP. The insurer, Northwestern Mutual, had removed the case to federal court arguing that the insurance agent named in the lawsuit as a co-defendant was a “sham defendant” whose citizenship could be ignored.

Ehrlich filed a motion arguing that California law allowed actions against insurance agents in situations like those presented in the lawsuit, and therefore Northwestern Mutual’s removal was improper. The court agreed, and remanded the case to state court.

Order Granting Remand (.pdf)

Ehrlich Law Firm wins reversal of summary judgment in sexual-harassment suit against LAPD

LAPD Lieutenant Corina Smith claimed that the LAPD had submitted her to a hostile work environment and retaliated against her. The City moved for summary judgment. Smith’s trial counsel submitted a lengthy opposition, but many of the opposition declarations failed to contain a proper jurat under Code Civ. Proc. section 2015.5 (because they failed to indicate that they were either signed in California, or under penalty of perjury under California law.)

The Court of Appeal reversed, finding that the City had failed to show that it was entitled to judgment as a matter of law. (Smith v. City of Los Angeles B209861 (unpublished).

Ehrlich Firm wins reversal of summary judgment in case by kindergartener who was sexually molested at elementary school

AC was taken from the multipurpose room at an elementary school by a school employee, led onto a stage that was part of the room, and molested. The stage area was effectively screened from view because the school had been using the area to store cartons of books. The trial court granted summary judgment to the district on the ground that the stage could not constitute a dangerous condition on public property, and that there was no proximate cause.

The Court of Appeal reversed, finding that the manner in which the stage had been maintained created triable issues of fact about whether it was dangerous, and that the district had not negated proximate cause as a matter of law. (AC v. Pomona Unified School Distr. (2010) B.215607 (unpublished.)