Sacramento Personal Injury Lawyer Blog

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

THE SEPARATE STATEMENT'S FAILURES TO COMPLY WITH RULE 3.1350 SHOULD LEAD THE COURT TO DENY THE MOTION

The separate statement contains no specific reference to evidence, making the purported facts impossible to affirm or dispute.

Rule 3.1350, California Rules of Court, provides:

(d) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

Instead of setting forth a specific reference to portions of the interrogatories and answers as evidence in support of the claimed undisputed fact, movants were content to generally refer to the discovery responses in general, and to summarize and characterize the evidence. The tactic seems to be to claim the absence of facts by offering movants' counsel's summary of discovery.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Sacramento Man's Familiy Files Elder Abuse Claim Against Doctors, Part 6 of 8 " »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

The separate statement provides what it purports to be a summary of responses to interrogatories 25 and 45, but fails to make reference to the specific portions of the lengthy discovery responses it purports to summarize. Moreover, there is no reference to or summary of the voluminous medical records with Plaintiffs response refers to and incorporates under C.C.P. §2030.230. Accordingly, the separate statement is deficient. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers. California Rules of Court, Rule 3.1350(d).

It is not the court's (or Plaintiffs') responsibility to pour over lengthy documents to find the evidence on which defendants rely to determine whether defendants' characterization of the interrogatories and plaintiffs' responses, are accurate. The "Golden Rule of Summary Adjudication" is: "If it is not set forth in the separate statement, it does not exist." Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208. Defendants' deficient separate statement makes the in determining the presence or absence of material issues of fact extremely difficult if not impossible. If defendants had asked discrete questions requesting factual support for each element of each cause of action and provided the response thereto, perhaps it would be a more a manageable task.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Parties Battle Over Factual Basis For Sacramento Elder Abuse Suit, Part 5 of 8 " »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

Further, the motion completely ignores and fails to address the fact that Plaintiffs' discovery responses include exercise of Plaintiffs' right to respond to the interrogatories by reference to documents where the response calls for a compilation, audit, abstract or summary of records. See C.C.P. §2030.230. After setting forth seven pages of facts, Plaintiffs discovery responses state:

A further response to this interrogatory would require a compilation, abstract, audit or summary of the medical records of Paul Hill's health care providers, the burden and expense of preparation of which would be substantially the same for the propounding party, and accordingly Plaintiff responds under C.C.P. §2030.230 and refers to the medical records of Paul Hill, including the records of St. Edna's Subacute and Rehabilitation Center, and Fountain Valley Regional Hospital and Medical Center, Prairie La Vida Medical Group, Starcare/Gateway Medical Group, and PacifiCare/Secure Horizons.

The moving papers are completely devoid of any evidence that the records referred to in Plaintiffs' discovery responses are factually devoid sufficient to meet their burden. To the contrary, the medical records clearly establish XYZ Care's knowledge of Mr. Jackson's condition, knowledge that failure to address his care needs would subject him to severe injury and death, knowledge of his deteriorating condition, and complete failure by XYZ Care's staff to take any action, as required by applicable federal and state regulations standards of care, to avoid the known perils to Mr. Jackson.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Sacramento Skilled Nursing Facility Commits Egregious Elder Abuse, Part 4 of 8 " »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

PLAINTIFFS' DISCOVERY RESPONSES ARE NOT FACTUALLY DEVOID AND DO NOT ESTABLISH THE LACK OF EVIDENCE OF ANY ELEMENT OF ANY CLAIM, MOREOVER, DEFENDANT XYZ CARE'S MOTION MISCHARACTERIZES PLAINTIFF'S DISCOVERY RESPONSES, FAILS TO ADDRESS PLAINTIFFS' EXERCISE OF THEIR RIGHT TO REFER TO RECORDS IN THEIR RESPONSE, AND INCLUDES NO AFFIRMATIVE EVIDENCE THAT THE FACTS SET FORTH IN PLAINTIFFS' DISCOVERY RESPONSES (AND DOCUMENTS REFERRED TO THEREIN) ARE INSUFFICIENT TO ESTABLISH ANY ELEMENT OF PLAINTIFFS' CLAIMS

Plaintiffs recognize that a defendant moving for summary adjudication may rely on "factually devoid" discovery responses to shift the burden of proof. C.C.P. §437c(p)(2). Circumstantial evidence supporting a defendant's summary judgment motion can consist of factually devoid discovery responses from which an absence of evidence can be inferred, but "the burden should not shift without stringent review of the direct, circumstantial and inferential evidence." Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.

The moving papers concede that Plaintiffs' discovery responses include seven pages of facts which support the claims for which defendants seek summary adjudication, including two pages which specifically pertain to XYZ Care.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Parties In Sacramento Elder Abuse Case Fight Over Documents, Part 3 of 8 " »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

DEFENDANT HAS THE INITIAL BURDEN OF ESTABLISHING THE NONEXISTENCE OF ANY TRIABLE ISSUE OF MATERIAL FACT

Summary adjudication is appropriate where there is no triable issue as to any material fact. The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. There is no obligation on the opposing party ... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor. Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468. As Aguilar, supra, [citation], and Saelzler v. Advanced Group 400, supra, 25 Cal.4th 763, 107 Cal.Rptr.2d 617, 23 P.3d 1143, later made clear, a defendant cannot simply argue that a plaintiff lacks sufficient evidence to establish causation; the defendant must make an affirmative showing that the plaintiff cannot do so. Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 103.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Elder Abuse At Sacramento Skilled Nursing Facility Prompts Lawsuit, Part 2 of 8 " »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

Plaintiff Sabrina White's Memorandum of Points and Authorities in Opposition to the Motion By Defendant XYZ Care LLC for Summary Adjudication of Issues

Plaintiffs submit the following memorandum of points and authorities in opposition to the motion by Defendant XYZ Care, LLC (hereinafter, XYZ Care ) for summary adjudication.

INTRODUCTION AND SUMMARY OF ARGUMENT

The motion by Defendant XYZ Care for summary adjudication must be denied because it is ill conceived and procedurally, legally and factually defective. The defects in the motion and moving separate statement are such as to violate clearly stated standards for motion for summary adjudication, and must lead to denial of the motion.

The motion is based solely upon plaintiffs' purported "factually devoid" responses to special interrogatories. While Plaintiffs recognize that under certain circumstances factually devoid discovery responses may establish proper grounds for summary adjudication, XYZ Care's motion fails in its initial burden to demonstrate any lack of evidence to support Plaintiffs' claims simply because the discovery responses upon which the motion relies contain references to pages of facts and evidence which purportedly support Plaintiffs' claims for which Defendant seeks summary adjudication.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Sacramento Family Sues Nursing Facility For Elder Abuse, Part 1 of 8 " »