Statutory Authority for Common Civil Lawsuit Issues

998 Offers

  • Claimants in Under Insured Motorist (UIM) cases can recover post 998 costs even in excess of the policy limits.  –  (Pilimai v. Farmers Ins. Exch. Co. (2006) 39 Cal.4th 133)

Cases Do Not Stand for Things Not Considered

  • “It is axiomatic that cases are not authority for propositions not considered.”

(In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388;  see also Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 340.)

Discovery

  • Subpoenas – CCP 1987 et seq.
  • Depositions – CCP2025.010 et seq.
  • Reenactments are allowed at depositionsEmerson Elec. Co. v. Sup.Ct. (Grayson) (1997) 16 Cal.4th 1101, 1111-1112.
  • Interrogatories – CCP 2030.010 et seq.
  • Objection to Interrogatory Requiring “compilation, abstract, audit, or summary” – CCP 2030.230 et seq.
  • Requests for Production of Documents – CCP 2031.010 et seq.
  • Requests for Admission – CCP 2033.010 et seq.
  • Meet and Confer Declaration – 2016.040 et seq.

Mistakes

  • Mistake and Excusable Neglect – CCP 473 et seq.

Statutes of Limitation

  • Civil Cases – CCP 335 et seq.

Expert Disclsoure

  • Expert Disclosure – CCP 2034.210 et seq.
  • Plaintiff has no duty to produce non-retained doctors for deposHurtado v. Western Med. Ctr.(1990), 222 Cal.App.3d 1198.

Medical Examinations

  • Independent Medical Examination (IME) – CCP 2032.010 et seq.
  • Independent Medical Examination Reports (IME) – CCP 2032.610.

Motions in Limine

  • Relevant Evidence Definition – Evidence Code 210.
  • Only Relevant Evidence Admissible –  Evidence Code 350.
  • Exclude Evidence Where Prejudice Substantially Outweighs Probative Value – Evidence Code 352.

Trial

  • Call opponent’s witnesses out during case in chief – Evidence Code 776.

Liens

  • Code section That Affects HMO/Health Service Plan’s Lien Rights – Civil Code 3040.

Attorneys Fees

  • Unilateral Attorneys Fees Provision in Contract Allows Both Parties to Recover Attorney’s Fees – Civil Code 1717.

Sanctions

  • Notice of Sanctions must be in Notice of Motion – Code of Civil Procedure 2023.040.

Court Quotes

Statutory Interpretation

  • ” If the language is clear, there can be no room for interpretation.”

(Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344, 353—354, 139 ; Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 7, 125 Cal.Rptr. 408.)

  • “It is assumed that the Legislature, in enacting new legislation, has in mind existing related laws.” 

(People ex rel. Thain v. City of Palo Alto (1969) 273 Cal.App.3d 400, 406.)

  • “The objective of statutory interpretation is to ascertain and effectuate legislative intent. To accomplish that objective, courts must look first to the words of the statute, giving effect to their plain meaning. If those words are clear, we may not alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history…. Whenever possible, we must give effect to every word in a statute and avoid a construction making a statutory term surplusage or meaningless.”

(In re Jerry R.(1994) 29 Cal.App.4th 1432, 1437)

Purpose of Discovery Act

  • The purposes of the discovery statutes are “to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.”

(Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1294, 24 Cal.Rptr.2d 238.)

Right to Privacy in Medical Records

  • “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.”

(Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)

  • “The automatic waiver of the physician-patient and psychotherapist-patient privileges (Evid. Code, §§ 990 et seq., and 1010 et seq.) contemplated by the patient-litigant exception (Evid. Code, §§ 996 and 1016) must be construed not as a complete waiver of the privilege, but only as a limited waiver concomitant with the purposes of the exception.”
(Britt v. Superior Court (1978) 20 Cal.3d 844.)

Obligation of Counsel Obtaining Private Records

  • “the obligation of an attorney receiving privileged documents due to the inadvertence of another is as follows: When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged.”

(State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656)

On Professionalism

  • “Like Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement.”

(Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1436.)

Constitutional Rights

  • “Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.”

(J Hugo L. Black, in Turner v United States, 396 US 398, 426 (1970)(Black, J, dissenting))

Liberty

  • “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”

(J Louis D. Brandeis, dissenting in Olmstead v United States, 277 US 438, 479 (1928).)

Professional Courtesy

  • “We are particularly troubled by the court’s remarks characterizing the legal profession as “a dog-eat-dog business,” “the law of the jungle” and “people … cutting each other up.” If this is, indeed, the modern trend, it should be curtailed so far as possible, not rewarded.”

(Brown v. Presley of So. California (1989) 213 Cal.App.3d 612, 620.)

Lack of Prior Accidents

“The mere fact that a particular kind of an accident has not happened before does not … show that such accident is one which might not reasonably have been anticipated.” (Ridley v. Grifall Trucking Co. (1955) 136 Cal. App.2d 682, 686.)


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