New California Use of Force Legislation
By: Melissa T. Currier, Associate Attorney
AB 846 and 1196 took effect on January 1, 2021. This legislation, passed in the wake of George Floyd’s highly publicized death, indicates the Legislature’s intent to promote community-oriented practices in law enforcement.
AB 846 amends California Government Code section 1031.3 and adds section 13561 to the Penal Code, expanding the required minimum standards for hiring peace officers in California. Previously, it was required for officers to be found free from any physical, emotional, or mental condition that might adversely affect the exercise of powers of a peace officer. AB 846 amends this section and specifies peace officers must also be free from any bias against race, ethnicity, gender, nationality, religion, disability, or sexual orientation. AB 846 also requires the Commission on Peace Officer Standard and Training (P.O.S.T.) to update its regulations and screening materials for selecting peace officers to incorporate identification of explicit and implicit bias. Finally, AB 846 requires law enforcement agencies to review existing peace officer job descriptions and make changes to emphasize community-based policing.
Existing law requires law enforcement agencies to maintain a policy on the use of force. AB 1196 adds section 7286.5 to the California Government Code and prohibits law enforcement agencies from specifically authorizing peace officers to use choke holds or carotid restraints. However, this law does not require agencies to maintain use of force policies prohibiting the use of choke holds or carotid restraints. Thus, a use of force police that is silent on the use of choke holds or carotid restraints would not violate this section. Peace officers remain authorized to use the reasonable force necessary to effect an arrest, to prevent escape, or to overcome resistance.
Legislation regarding use of force is ever changing in California. Law enforcement agencies should be aware of the new requirements imposed by AB 846 and 1196 to avoid potential liability.
Procedure in the Time of Corona: New Emergency Administrative and Judicial Procedural Rules in California
By: Garrett Seuell, Associate Attorney
Governor Newsom Extends Time to Present a Claim to a Public Entity
Government Code section 911.2 requires a claimant to present a claim against a local public entity or the State of California – related to a cause of action for death or injury to people, personal property, or growing crops – within six months of the death or injury. A claim for any other cause of action must be presented within a year. Under Government Code section 915, a claim against the State of California must be delivered or mailed to the Department of General Services (“DGS”) within the statutory period.
Government Code section 911.6 requires a local public entity or the State of California to grant or deny the claim within 45 days of receiving the claim.
On March 21, 2020, Governor Gavin Newsome issued Executive Order N-35-20 (“Executive Order”). Among other things, the Executive Order states: “The time for presenting a claim pursuant to Government Code section 911, et seq., is hereby extended by 60 days. The time within which the Department of General Services may act upon such claim is extended by 60 days.” This language clearly extends the time a claimant has to file a claim by 60 days. The Executive Order also clearly extends the time the State of California has to respond by 60 days. However, it is unclear whether the Executive Order applies to other public entities because the order only identifies the DGS (a state agency).
If the 60-day extension to respond does not apply to public entities other than the State, the 45-day response deadline under section 911.6 would remain applicable.
Public entities should be aware of these changes to the statutory deadlines to ensure they do not erroneously respond to presented claims.
In an effort to ensure the preservation of legal defenses, such as a statute of limitations defense, a public entity could opt for Board action within the original 45-day timeframe. In addition, if a public entity prefers to wait until the expiration of the response deadline, at which point the claim is deemed automatically rejected without formal action, the entity could wait to issue the notice of rejection until after the 60-day mark with the date of rejection identified as either the 45-day or 60-day deadline, with the caveat that the date depends on the applicability of Executive Order N-35-20 to public entities other than the State of California.
The Judicial Council Adopts New Rules to Confront the Impact of the COVID-19 Pandemic
Code of Civil Procedure section 335.1 establishes a two-year statute of limitation for injuries to persons. Code of Civil Procedure section 338(b),(c) establishes a three-year statute of limitation for injuries to real and personal property.
On April 6, 2020, the Judicial Council approved several temporary emergency rules which include Emergency Rule #9 – “Toll the statutes of limitations for civil causes of action.” This emergency rule tolls the statute of limitation in civil actions from April 6, 2020 until 90 days after the Governor declares the state of emergency related to the COVID-19 pandemic is lifted.
The Judicial Council also adopted Emergency Rule #10 – “Extension of five years in which to bring a civil action to trial.” Code of Civil Procedure section 583.310 requires that a civil case be brought to trial within five years of the filing of the complaint. Emergency Rule #10 extends the five-year statute of limitations by six months for a total time of five years and six months.
The Judicial Council also adopted Emergency Rule #11 – “Depositions through remote electronic means.” This rule states that a party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition.
On April 17, 2020, the Judicial Council adopted Emergency Rule #12 – “Electronic service.” This rule states, among other things, that a party represented by counsel in a general civil case, who has appeared in an action or proceeding, must accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before serving a represented party electronically, the serving party must confirm by telephone or email the appropriate electronic service address for the counsel being served. Electronic service on a self-represented party is permitted only with consent of that party, confirmed in writing. The written consent to accept electronic service may be exchanged electronically.
Confidential or sealed records electronically served must be served through encrypted methods to ensure that the documents are not improperly disclosed.
In addition, the Code of Civil Procedure section 1010.6(a)(4) and (5) applies to Emergency Rule #12. This means that the electronic service of a document is deemed complete at the time of the electronic transmission or at the time that the electronic notification of service of the document is sent. And any document that is served electronically between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed served on that court day. Any document that is served electronically on a non-court day shall be deemed served on the next court day.
The Emergency Rules of Court will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.
This advisory is not exhaustive, does not take the place of consulting with legal counsel, and does not constitute legal advice as to any particular set of circumstances. For questions regarding specific circumstances, please contact legal counsel.
COVID-19 Employment Update: New Coronavirus Paid Leave Laws
By: Serena M. Warner, Partner
Effective April 1, 2020
The Federal Families First Coronavirus Recovery Act (FFCRA) requires all public entities and private employers with less than 500 employees to provide employees with Emergency Paid Sick Leave and Emergency Paid Family Leave.
These emergency provisions apply to active employees, i.e. employees who receive pay on or after April 1, 2020 through December 31, 2020. The new leave requirements do not apply to businesses that are closed or to compensate for any furloughs or reduction of hours due to a downturn in business or lack of work. Employees impacted by business closure or lack of work may be eligible for alternate benefits such as Unemployment Insurance.
FFCRA provides allows employers to exclude health care providers and emergency responders. See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions [questions 56 & 57] for more information on classifications of exempted employees.
Emergency Paid Sick Leave (Emergency PSL)
Eligibility: All active employees regardless of when hired.
Qualifying Reasons for Emergency PSL: Employees who are unable to work, including working remotely, because:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19 (this does not include “shelter in place” orders);
- The employee has been advised by a health care provider to self-quarantine related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- The employee is caring for an individual subject to an order described in subsection (1) or self-quarantine as described in subsection (2);
- The employee is caring for his or her child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons; or
- The employee is experiencing any other substantially-similar condition as specified by the U.S. Department of Health and Human Services (none have been defined to date).
Pay: Up to 80 hours (for full-time employees [regularly scheduled 40+ hours]) or two weeks’ pay for part-time employees. See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions [questions 5 & 6] for method of calculating hours.
Rate: The employee’s regular rate of pay, subject to the following caps and Emergency PSL Reasons:
- For Emergency PSL Reasons 1, 2, and 3 (listed above) – Regular rate of pay, capped at $511 per day; $5,110 in total;
- For Emergency PSL Reasons 4, 5, and 6 (listed above) – Two-thirds regular rate of pay, capped at $200 per day; $2,000 in total.
Interaction with Other Paid Leave: Emergency PSL is in addition to other leave provided under Federal, State, or local law, an applicable collective bargaining agreement, or an employer’s existing policy. Emergency PSL can be used for the first 10 days of unpaid Emergency FMLA (described below). Employers cannot require employees to use other available time off (e.g. vacation) prior to using Emergency PSL.
Limited Availability of Intermittent Emergency PSL Leave: An employer can agree to allow Intermittent Emergency PSL for employees working remotely or caring for their child due to school closures with, but it is not required. Those who are sick, quarantined, or taking care of someone who is sick cannot use intermittent Emergency PSL if working on-site.
Emergency Family Medical Leave Act Expansion (Emergency FMLA)
Eligibility: All active employees employed for 30 calendar days immediately prior to the start of Emergency FMLA leave. Applies to employers even if not covered by regular FMLA requirements.
Qualifying Reason for Leave: Eligible employees who are unable to work, including working remotely, due to a need to care for their child when the school or place of care has been closed or the regular childcare provider is unavailable due to a public health emergency pertaining to COVID-19.
Pay: Employees will have up to 12 weeks of Emergency FMLA to use from April 1, 2020 through December 31, 2020. This time is included in, not in addition to, the total FMLA leave entitlement of 12 weeks in a 12-month period. For example: if an employee has already taken 6 weeks of FMLA leave as of April 1, 2020, that employee would be eligible for 6 weeks of Emergency FMLA.
Rate: Emergency FMLA will be unpaid for the first 10 days of leave. However, employees may use Emergency PSL (or other accrued leave) for the first 10 days of Emergency FMLA leave. After the first 10 days, Emergency FMLA leave will be paid at two-thirds of an employee’s regular rate of pay for the number of hours the employee would otherwise be scheduled to work. Emergency FMLA pay shall not exceed $200 per day or $10,000 in total ($12,000 in total if Emergency PSL is elected for use during the 10 days of unpaid time).
Intermittent Emergency FMLA: An employer may allow for the use of intermittent Emergency FMLA, but it is not required.
Certification Requirement: An employer may require certification of a school/childcare provider closure, which can include a notice of closure issued by the government, school, or daycare either directly to the employee by letter or email, on the school or provider’s website, or published in a newspaper.
Employee Status After Leave/Exceptions: Generally, an employee who takes Emergency FMLA must to return to the same position or a position with equivalent status, pay, benefits, and other employment terms given that such position exists. However, an employer can lay off employees on protected leave for a legitimate business reason, such as closure. There are also limited exceptions to returning an employee to his or her position or an equivalent position:
- Key Employee Exception: an employer may choose to exempt highly compensated key employees (as defined under regular FMLA provisions) from Emergency FMLA when doing so will cause substantial and grievous economic injury to business operations. Key employees must be given written notice of their designation as a key employee at the time Emergency FMLA is requested.
- Small Business Exception: For businesses with fewer than 50 employees, businesses may eliminate the position of an employee on Emergency FMLA due to economic conditions or operational changes made because of the public health emergency. However, the employer is required to make reasonable efforts to contact the employee if an equivalent position becomes available for a year following the use of leave.
No Carryover or Payout: Emergency PSL and Emergency FMLA is available through December 31, 2020. Any leave not used during this time will not carry over into 2021, nor are employees entitled to a payout for unused Emergency PSL.
Job Protections: No employee who appropriately utilizes Emergency PSL or Emergency FMLA may be discharged, disciplined, or discriminated against for work time missed due to this leave.
Employer Notice: Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.
Tax Credits: Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website. See also https://www.dol.gov/agencies/whd/pandemic/ffcra-questions [question 15] regarding records needed to claim tax credit.
Department of Labor FAQs: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
Dept. of Treasury Information on Tax Credit: https://home.treasury.gov/news/press-releases/sm952
This memorandum discusses current legal authorities and administrative guidance regarding the FFRA but is not exhaustive, does not take the place of consulting with legal counsel, and does not constitute legal advice as to any particular set of circumstances. For questions regarding specific circumstances, please contact legal counsel.
 There is an exception for businesses with fewer than 50 employees from providing Emergency PSL [for Reason 5 only] and Emergency FMLA if compliance would “jeopardize the viability of the business as going concern.” The burden is on employer to prove applicable circumstances.
 It is currently unclear whether this exemption applies to public entities with fewer than 50 employees.
UPDATE AKK CASE Spotlight: Richards v. Prieto
By: John A. Whitesides, Partner
In June 2017, the U.S. Supreme Court, with two justices dissenting, decided not to review a 2016 decision by the Ninth Circuit (824 F.3d 919) upholding California’s delegation of discretion to local sheriffs regarding issuance of concealed gun carry permits. In two cases, one against San Diego County Sheriff Gore (Peruta) and one against Yolo County Sheriff Prieto (Richards), the plaintiffs challenged, as violating their Second Amendment right to carry arms, the Sheriffs’ requirements of extraordinary need for public carrying of a weapon under clothing. The 11 judge Ninth Circuit panel upheld the district courts’ summary judgments for the sheriffs on the ground that the Second Amendment doesn’t preserve a right to concealed carry outside the home, and the Ninth Circuit expressly declined to address the plaintiffs’ contention that, without the ability to openly carry firearms, they had no means to publicly carry guns at all.
Many states and a number of law enforcement groups joined in the plaintiffs’ request for Supreme Court review of this provocative and important issue. The plaintiffs also argued that the Ninth Circuit’s decision conflicted with that of the Seventh Circuit in a decision issued several years before, which stated a Second Amendment right to public carry did exist. So, why did the Court refuse to consider the case? Although there is no way to know for sure, several explanations are possible: (1) the plaintiffs neither tried to openly carry guns, nor indicated a desire to do so, which rendered problematic their ability to argue California law foreclosed that means of self-defense; (2) contrary to the strong colonial basis for keeping guns in the home that led to the Court’s invalidating of the District of Columbia’s gun control laws in the Heller decision, the presence of a historically-recognized right to carry guns in urban areas is far less clear, and the plaintiffs acknowledged to at least some degree that California doesn’t generally ban open carrying of guns outside city limits; (3) even if a constitutional right to carry within city limits exists, California allows open carry of guns in many places, subject to landowner consent and being unloaded in public areas, rendering the issue far more complicated than was so with D.C.’s almost universal ban on handgun possession in Heller; or (4) for whatever reason, the Court had over the last five years refused to hear similar challenges to public gun carry laws in New York, New Jersey, and Maryland, suggesting its essential disinterest in tackling this issue.
Judges Thomas and Gorsuch felt the Court should have taken the case because: (a) California largely prohibits open carry (a debatable and subjective conclusion); (b) the plaintiffs had consistently argued for the general right to carry guns in public rather than for concealed carry per se (which is true but didn’t address their pre-suit conduct on which standing turns), and (c) that “carrying” a gun must mean away from home (likely so, but that doesn’t address the urban v. rural issue). The dissent provides some clues as to the majority’s reasoning by saying “Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry . . . “ which comports with factors 2 and 4, above.
To Test Breath or Blood, That Is the Question
By: Bruce Kilday, Partner
Recently, the US Supreme Court held in Birchfield vs. North Dakota, 136 S.Ct. 2160 (June 23, 2016) that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Every state has what are termed “implied consent laws” which impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws. In California, we have Vehicle Code §23612. If pulled over, the officer must advise the driver he has the right to refuse the test but that refusal may result in a fine, a suspended license, and jail time if convicted for a DUI later.
This opinion decides three driving under the influence cases that challenged this implied consent scheme. In the first case, Birchfield vs. North Dakota, Daniel Birchfield crashed his car into a ditch and was arrested for driving under the influence. He blew a .254 BAC into the (non-evidentary) roadside breath test. However he refused to provide a chemical test. He plead guilty to refusing to provide a blood sample and appealed arguing the refusal law violated his Fourth Amendment right against unreasonable searches. In Bernard v. Minnesota, William Robert Bernard was arrested for driving under the influence after he got his truck stuck in mud while trying to pull a boat onto land. Bernard refused to provide a breath sample and was prosecuted for refusing to provide a chemical test. In Beyland v. North Dakota Dept. of Transp., Steve Michael Beyland was stopped for driving erratically and exhibiting signs of intoxication. He was arrested for driving under the influence. Beyland gave a blood sample that showed his BAC was .25 after police read him North Dakota’s Implied Consent law advising him it was a crime to not provide a chemical test. He argued his consent to provide the blood test was coerced because he consented only to avoid being charged with the offense of refusing to provide a chemical test.
The U.S. Supreme Court determined there is a difference between blood tests and breath tests for Fourth Amendment purposes. In the court’s majority opinion, Justice Sam Alito writes that criminalizing the refusal of a warrantless breath test is not unconstitutional because breath tests are minimally invasive and to declare them unconstitutional would put too great a burden on local courts, which would be inundated with requests for warrants for the tests. But Alito writes that criminalizing the refusal of a blood test is not constitutional because blood tests are significantly more invasive, and besides the state already has the breath tests available to them. The Court held that police do not need warrants to obtain breath tests from drunk drivers because they are non-invasive and communicate only the BAC in the driver’s system. The Court also determined criminalizing refusal to submit to a breath test is designed to serve the government’s interest in preventing drunk driving, which is greater than merely keeping currently drunk drivers off the roads, and does so better than other alternatives. However, the same rationale did not apply to criminalizing refusal to submit to a blood test because of the greater degree of intrusion and the available alternative of the breath test. Motorists may not be criminally punished for refusing to submit to a blood test based on implied consent. The Court reasoned that it is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit.
Justice Sonia Sotomayor (a former Dep. District Attorney) wanted to go further and strike down laws criminalizing the refusal of breath tests as well. In her partial concurrence and partial dissent, she argued that a categorical rule allowing warrantless breath tests incident to arrest was unnecessary to protect the government interest of preventing drunk driving because at that point the driver is off the road and a warrant could be obtained if necessary. Justice Clarence Thomas wrote a separate opinion concurring in the judgment in part and dissenting in part, arguing that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement should apply to all blood alcohol tests, including blood tests. He argued that by drawing an arbitrary line between blood tests and breath tests, the majority destabilized the law of exceptions to the warrant requirement and made the jobs of both police officers and lower courts more difficult.
IMPACT ON LAW ENFORCEMENT
What does this mean to law enforcement in the field? A look at the standard CHP DUI Investigation Report contains the language under the “Preliminary Alcohol Screen Information” that “……if arrested, you will be required to give a sample of our blood, breath, or urine for the purpose of determining the actual alcoholic content of your blood.” This admonition is no longer accurate, and should be limited to a breath test. Moreover, officers are still required to give the Trombetta Advisement that the breath sample is not retained for later analysis, and if the arrestee wants an evidentiary sample retained for re-testing, a blood sample must be given.
What about driving under the influence of something other than alcohol, or some other crime? This decision means that if a blood sample is desired, the officer must get consent, must get a warrant, or must establish an exception to the 4th Amendment warrant requirement.
Courts expect officers to take advantage of modern communications to expedite a judge’s consideration of a warrant application, e.g. PC §1526(b). So, courts clearly prefer officers to get a warrant before any non-consensual blood draw, and you must be prepared to demonstrate exactly why it was not practicable to wait for a judge to review the case and issue a warrant.
There is an exception to the warrant requirement if “there is a compelling need for official action and no time to secure a warrant.” Michigan v Tyler, 436 U.S. 499, 509 (1978). Courts look to the totality of circumstances and evaluate each alleged exigency based “on its own facts and circumstances.” Missouri v McNeely, 133 S.Ct. 1552, 1559 (2013) (quoting Go-Bart Importing v U.S. 282 U.S. 344, 357 (1931)). In People v Thompson (2006) 38 Cal. 4th 811, the California Supreme Court ruled exigent circumstances existed to justify the warrantless entry into a home to seize the suspect in a DUI, noting both the danger of dissipation of evidence and the risk of corruption of evidence if the suspect took advantage of a delay (to get a warrant) and consumed more alcohol, or merely claimed to have done so.
The fact that alcohol metabolizes in the bloodstream is well-accepted by courts, but does not justify a blanket exception to the warrant requirement. McNeely, 133 S.Ct. at 1563. Instead an officer who wants to compel a suspect to give a blood sample without a warrant must be able to show “the delay necessary to obtain a warrant, under the [particular] circumstances, threatened the destruction of evidence.” Schmerber v California, 384 U.S. 757, 770 (1966). The officer must also show the desired evidence could not be obtained in some less intrusive manner, e.g. a breath test. Thus, the use of a DRE trained officer to show the reasonable likelihood of drugs, instead of mere alcohol, could be valuable in demonstrating both need and exigency.
What are the consequences of failing to obtain a warrant before compelling a blood sample? In addition to the possible suppression of the blood evidence, the arrestee can file a lawsuit against the officer and the agency for violation of his civil rights under §1983. This is not merely an abstract possibility – AK&K has defended two federal cases in which blood samples were taken without benefit of a warrant or consent. Each plaintiff sought punitive damages from the individual officer. Interestingly, neither case involved a DUI arrest. Both were arrests for burglary and the sample was compelled because the officer believed the suspect was under the influence of drugs. One suspect fought and required 4 officers to hold him down during the blood draw. We persuaded each jury that the blood sample was needed to show whether or not the suspect was able to form the specific intent element of a burglary. Of course, we also proved it was reasonable for the officer to believe the evidence would dissipate before a warrant could be obtained.
TAKE AWAY POINTS:
- No warrant is needed to obtain a breath test in a DUI arrest.
- Officers should still give the Trombetta advisement that any re-testing of a sample would require a blood sample be obtained.
- A blood test requires consent, or a warrant, or an exception to the warrant requirement. Officers should be familiar with the procedures for getting a warrant after hours.
- If an officer wants a blood test without consent or a warrant, the officer must show a real exigency exists (i.e. that it’s reasonable to believe a delay caused by getting a warrant threatens the destruction of evidence).
- Failure to obtain a warrant risks exclusion of evidence or a civil rights lawsuit.
 Since the purpose of obtaining this breath test is to provide evidence of possible DUI, it is reasonable to assume the Supreme Court is referring to a breath test that would be admissible in a criminal proceeding, i.e. a Breathalyzer instead of a PAS device.
PERSONAL INJURY CASE ALERT: USPENSKAYA V. MELINE — Potential Reduction of Past Medical Billings After MedFin Lien Purchases
By: Kevin Dehoff, Partner
In Uspenskaya, an uninsured plaintiff was involved in a significant motor vehicle accident. She entered into contractual agreements with her medical providers, Sutter Hospital and Dr. Philip Orisek, to have her medical treatment provided in exchange for a lien on any recovery obtained from defendant in her lawsuit. Prior to trial, a third party assignee, MedFin Managers, LLC (MedFin), purchased the liens for a greatly discounted sum but plaintiff continued to remain responsible for the entire amount.
Defendant’s trial motion to admit evidence of the amount MedFin paid for the medical liens was denied. The jury returned a sizable verdict of $429,773.71, including $261,773.71 in past medical specials, which was the full amount of plaintiff’s medical bills. Defendant appealed arguing that evidence of MedFin payments was admissible to establish the reasonable valuation of plaintiff’s medical expenses.
A plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555.) In other words, damages for past medical expenses are limited to the lesser of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value of the services. (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1325-1326.)
The Court discussed the opinion in Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1291, which held that “[t]he intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment.” However, in Uspenskaya, the defendant was not arguing that the amount MedFin paid for plaintiff’s liens should reduce her total medical bills under Howell, but that the amount a medical provider accepts from a non-insurer third party is admissible as evidence of the reasonable value of the services. In fact, the Katiuzhinsky Court noted, “Nothing in our decision should be taken to mean that evidence a health care provider subsequently sold its bill to MedFin is inadmissible. (Katiuzhinsky, supra, 152 Cal.App.4th at p.1298.)
In affirming the ruling of the trial court denying the introduction of the evidence, the Court noted MedFin’s purchase price may represent a reasonable approximation of the collectability of the debt rather than the reasonable approximation of the value of the plaintiff’s medical services. However, the Court left open the possibility evidence concerning the value of MedFin payments could be admissible with some additional evidence showing a nexus between the amount paid by MedFin and the reasonable value of the medical services. This was not done in Uspenskaya but could potentially be undertaken in other cases.
For instance, the trial court’s opinion highlighted that the defense could retain an expert witness to opine regarding the reasonableness of the amount paid by Medfin for the medical services provided to a plaintiff. The trial judge explained the expert could testify as to what the medical providers accepted and that it was reasonable because he or she evaluated what was charged by other providers in the region.
In sum, uninsured or insured plaintiffs treating under a lien agreement, which liens are later sold to Medfin at a discounted rate, continue to pose problems as the significant past medical damages award in Uspenskaya reflects. However, this opinion expands upon Katiuzhinsky without contradicting it, and potentially gives the defense the ability to introduce into evidence the highly discounted amount MedFin and other factors pay medical providers whose treatment of plaintiffs are secured by litigation liens.
AKK CASE Spotlight: Richards v. Prieto, Case No. 11-16255
By: John A. Whitesides, Partner
National, state, and local firearm rights and firearm control proponents are focused on two cases awaiting decision by an 11 judge panel of the United States Court of Appeals for the Ninth Circuit. In Richards v. Prieto and Peruta v. County of San Diego, the plaintiffs allege a Second Amendment right to carry concealed firearms in public, and that county sheriffs cannot defeat the right by requiring proof, beyond a general desire for self-defense, of a need for such protection. In turn, the sheriffs contend the Constitution does not confer a right to carry concealed weapons in public places, especially within cities, so to require local law enforcement officials to issue concealed carry permits. The federal district courts agreed with the sheriffs, but by a 2-1 decision issued in early 2014, a three-judge panel of the Ninth Circuit reversed those judgments, finding such a right exists given California’s gun control laws.
Yolo County Sheriff Prieto, represented by Angelo, Kilday, and Kilduff, successfully requested the Ninth Circuit review the split opinion on the grounds it conflicted with other Ninth Circuit and U.S. Supreme Court decisions. The California Attorney General’s office argued in support of the sheriffs during briefing last spring. Hawaii also supported the sheriffs’ position, while Texas and certain other states supported the plaintiffs’ view. Oral argument occurred in June, 2015, and a decision could issue by year’s end. Over the past several years, three circuit courts in the Northeast have upheld similar public carry licensing laws of New York, New Jersey, and Maryland. In each instance, the U.S. Supreme Court refused that plaintiff’s request to address the issue.
To listen to AKK’s John Whitesides’ Ninth Circuit En Banc oral argument: http://www.c-span.org/video/?c4542330/edward-peruta-v-county-san-diego-oral-argument
CASE UPDATE: Poole v. Orange County Fire Authority, Case No. S215300 (August 24, 2015) – The CA Supreme Court Weighs in on the Scope of the Firefighters Procedural Bill of Rights
By: Serena M. Warner, Partner
The Firefighters Procedural Bill of Rights (Cal. Gov. Code § 3250) gives firefighters the right to review and respond to any negative comment “entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer.” But does this extend to negative comments in a supervisor’s daily log kept solely as a memory aid for that particular supervisor only? The California Supreme Court held no. “[B]ecause the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a file ‘used for any personnel purposes by his or her employer.’”
Key considerations in determining whether a document falls within the protections of the Firefighters Procedural Bill of Rights:
- Does the person who prepared or has access to the document have the authority to make personnel decisions?
- Has the document been shared with anyone with authority to make personnel decisions?
- Is there a reasonable likelihood that the document will be shared with someone with the ability to make personnel decisions at some time in the future?
If you answered “Yes” to any of these questions, the document is likely covered by the Firefighters Procedural Bill of Rights and thus a firefighter would have the right to review and respond to any adverse comment in the document. Consult your attorney with questions regarding specific documents in question.
CASE UPDATE: Cordova v. City of Los Angeles – Causation Does Not Fall Too Far From The Tree
By: Serena M. Warner, Partner
This case stems from a tragic accident in the Eagle Rock neighborhood of Los Angeles. Cristyn Cordova was driving with four passengers when another vehicle veered into the side of her car. Cordova’s car was forced over the curb onto a grassy median, and began spinning out of control. The car struck several magnolia trees planted in the median, approximately seven feet from the inside lane of the road. Cordova and three of the passengers were killed. The fourth passenger was seriously injured.
Cordova’s parents filed an action against the City of Los Angeles alleging the magnolia trees were a dangerous condition of public property because they were planted too close to the travel portion of the road. At the trial court level, the City argued the action should be dismissed because the other vehicle caused the accident, and that plaintiffs could not prove that the magnolia trees caused the other driver to drive recklessly. Summary judgment was granted at the trial court level in favor of the City, and affirmed by the appellate court.
In a decision dated August 13, 2015, the California Supreme Court reversed. Its decision clarified that the statutes pertaining to dangerous conditions (Government Code §§ 830, 835) require a plaintiff to show (1) a dangerous condition existed at the time of the injury and (2) that the injury was proximately caused by the dangerous condition. There is no statutory requirement to prove the events that led to the injury were caused by the dangerous condition. Accordingly, if the magnolia trees were determined to be a dangerous condition of public property and the trees caused the injuries to Cordova and her passengers, the City would be liable for those injuries even though a third party’s negligence began the chain of events that led to the devastating outcome.
PARKING OUTSIDE THE LINES
City Obligations for Accessible On-Street Parking Under the ADA Absent Regulatory Guidance
By: Kevin Dehoff, Partner
On September 5, 2014, the Ninth Circuit decided Fortyune v. City of Lomita 766 F.3d 1098 (9th Cir. 2014), which continues to have ramifications regarding how public entities provide on-street public parking.
In this important decision interpreting the Americans with Disabilities Act (ADA), Mr. Fortyune, a paraplegic individual, sued the City under the ADA for not having handicapped on-street public parking spaces. He alleged he experienced difficulty, discomfort, and fear for his safety when frequenting facilities in the City because none of the City’s on-street public parking was accessible to people with disabilities. The City moved to dismiss the complaint arguing that absent specific ADA regulations, it was not required to ensure accessible on-street public parking options. Mr. Fortyune argued cities must adopt existing access standards, such as signage on the parking space and that the space be close to an accessible path of travel, to the public on-street parking areas.
The District Court denied the motion to dismiss and the Ninth Circuit affirmed. The Ninth Circuit held that public entities must ensure all government functions, including on-street public parking, are reasonably accessible to disabled persons irrespective of whether the Department of Justice (DOJ) has adopted technical specifications for the particular type of facility or area. It opined that interpreting the ADA otherwise would be inconsistent with its broad mandate that each newly constructed or altered facility be readily accessible.
The immediate impact of the Fortyune ruling is that cities and other governmental entities providing on-street public parking must ensure accessibility to the disabled. Disability access may also apply to other areas beyond on-street parking even absent express access standards. Despite the lack of federal guidance in these situations, a city must still use its best judgment to provide disability access in some form based upon existing regulations. This creates a myriad of problems for a public entity because with no guidance on how to construct a particular facility, the city could potentially be subject to an ADA lawsuit even if it tried to comply.
With respect to on-street public parking at least, relief for cities may be on the way. The DOJ and the U.S. Access Board have been working on promulgating regulations on this very issue for several years, although nothing has been finalized yet. Several proposed technical specifications regarding on-street public parking are described by the Access Board and located on its website. Unlike current regulations developed primarily for buildings and facilities on sites, the proposed accessibility guidelines expressly require on-street accessible parking in the public right-of-way. If finalized, the guidelines will be codified in the Code of Federal Regulations. In the meantime, the proposed guidelines could assist a public entity attempting to comply with the Fortyune decision.
NOTE: Nothing in these blog entries is intended to constitute legal advice. For legal advice please contact an attorney.