Appellate Update 2013 California JPIA Summit Daniel P. Barer, Pollak, Vida & Fisher

Design Immunity (GC 830.6) Injury Caused by Plan or Design Discretionary Approval of Plan, Design, or Standards Substantial Evidence that Reasonable Employee Could Adopt, or Reasonable Body or Employee Could Approve, Plan, Design, or Standards Still Conforms to Plan (Changed Circumstances); or Remediation or Adequate Warning

Design Immunity – Changed Conditions: Technological Advances Are advances in moveable median barrier design and use changed circumstances, eliminating design immunity for not using barriers?

Design Immunity – Changed Conditions: Technological Advances No. Only changed physical conditions of property in question. Dammann v. Golden Gate Bridge, Highway and Transportation Dist. (2012) 212 Cal.App.4th 335.

Design Immunity and Changed Conditions No evidence of changed conditions when traffic flow, speed, and accident rate haven’t changed after plan approval. Curtis v. County of Los Angeles (2013)__ Cal.App.4th ___ [2013 WL 3948084].

Design Immunity – Discretionary Approval and Design Standards If a design violates the entity’s own standards, can discretionary approval be established absent evidence approving official knowingly elected to disregard the standard?

Design Immunity – Discretionary Approval and Changed Standards No. No statutory requirement of “knowing” discretionary approval or adherence to standards. Disagrees with prior decisions. Hampton v. County of San Diego (2013) __ Cal.App.4th ___ [2013 WL 3934344].

Howell Update -- Corenbaum Howell open question: In Howell situation, is amount billed but not paid or owed for medical expenses admissible to prove any kind of damages? Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308: No.

Howell Update -- Corenbaum Full billed amount is not accurate measure of value of medical services. (Accord, State Farm v. Huff (2013) 216 Cal.App.4th 1463.) Past medicals: Full amount irrelevant. Future medicals: Not accurate; not relevant; confuses jury; suggests collateral source payment. Expert opinion on future medicals: Not reasonable basis. Noneconomic damages: Since not admissible to prove medical expenses, can’t get it in that way

Howell Update -- Corenbaum Who has the burden of proving damages limitations and amount? P generally has burden of proving amount of reasonable medical expenses. Howell: Does not address. Corenbaum: Implies P has burden of proving amount accepted as full payment via documents and testimony from provider; D has burden of proving reasonable medical expenses less than amount paid/owed.

Howell Update -- Corenbaum State Farm v. Huff (2013) 216 Cal.App.4th 1463 – Hospital must prove charges “reasonable and necessary” – not just by introducing bills Pooshs v. Phillip Morris (N.D. Cal. 2013) __ F.Supp.2d __: Corenbaum limits P’s evidence; parties ordered to stipulate to amounts paid. Hill v. Novartis Pharmaceuticals (E.D. Cal. 2013) __ F.Supp.2d___: Defense MiL on med expenses not actually paid granted. Fed evidence law ruled analogous to California law. People v. Bergin (2009) 167 Cal.App.4th 1166: Prosecutors seeking restitution have burden of showing plan or provision under which bills not paid in full.

Interaction of Howell and GC 985 Section 985 permits public entity defendant to move post-trial to ask court to reduce damages by subtracting certain collateral source payments. Permits rogs or written demand at TSC for collateral source provider info; if not given, can seek reduction for 5 years afterward + sanctions Must notify CS providers of settlement conferences. Pre-Howell P argument: Hanif/Nishihama based on 985. Howell: Rule applies regardless of whether 985 applies; courts retain authority to reduce recovery against public entity under 985.

Interaction of Howell and GC 985 Interaction: 985 addresses what collateral sources paid; Howell what collateral sources (and plaintiff) didn’t pay. Under Howell, P gets whatever collateral sources paid on P’s behalf. Under 985, court can subtract that amount from P’s recovery.

Mixed-Motive Employment Decisions Probationary bus driver terminated for poor job performance (permissible) and also because she was pregnant (impermissible). Sues under FEHA. If jury finds decision substantially motivated by discrimination, but employer would have made the same decision absent the discriminatory motive, what is the legal effect of the improper motive?

Mixed-Motive Employment Decisions Cal Supreme Court: Not a complete defense to liability. Employee may not recover damages, reinstatement, or backpay. But Employee may recover declaratory relief; injunctive relief; and attorney fees. Harris v. City of Santa Monica (2013) 56 Cal.4th 203.

Mixed-Motive Employment Decisions Burdens: P proves discrimination was substantial factor in motivating employment decision. D proves it would have made the same decision for lawful reasons in absence of discrimination. Both by preponderance of the evidence.

Misdirected Claims and Claims-As Presented Any document that gives notice of claim for money that, if not satisfied, will lead to litigation may be a claim or “claim as presented.” If no notice of sufficiency within 20 days (+), waive any defense based on lack of compliance with requirements for claims If no notice of untimeliness with 45 days (+), waive untimeliness.

Misdirected Claims and Claims-As Presented GC 915 lists proper recipients of claims What if claim (or claim as presented) is not delivered, mailed to, or received by proper recipient? What if it is sent to or received by the office that handles claims (e.g., risk manager, city attorney’s office)? Cal Supreme Court: Strict compliance with 915 – no compliance unless directed to or actually received by proper recipient. DiCampli-Mintz v. County of Santa Claira (2012) 55 Cal.4th 983.

Thank You! Daniel P. Barer, Pollak, Vida & Fisher dpb@pvandf.com www.pvandf.com Govlawweb.typepad.com