Justia Professional Malpractice & Ethics Opinion Summaries

The Commission on Teacher Credentialing (Commission) and its Committee of Credentials (Committee) (collectively, defendants) appealed the grant of mandamus relief to petitioner Russell Earnest, setting aside the Committee’s disciplinary recommendation against him and enjoining the Commission from acting on that recommendation. Defendants argued the trial court erred in finding: (1) Earnest was excused from exhausting his administrative remedies; and (2) the Committee lacked jurisdiction to conduct a formal review pursuant to Education Code1 section 44242.5 (d). They further asserted the trial court should have denied the petition under the doctrine of judicial restraint. In the unpublished portion of the opinion, the Court of Appeal concluded all three factors outlined in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., 35 Cal.4th 1072 (2005) weighed in favor of excusing Earnest from exhausting his administrative remedies. In the published portion of the opinion, the Court found that although section 44242.5 (b)(3) generally provided a jurisdictional basis for the Committee to commence initial reviews, as discussed post, the provision was also incorporated in section 44242.5 (d)(3) to provide a jurisdictional basis for the Committee to commence formal reviews. It was this jurisdictional provision the Committee relied upon in commencing a formal review of Earnest’s fitness to hold a credential. The Court thus concluded the plain language of section 44242.5(b)(3) imposed the onus on the employer to determine whether to provide a notifying statement to the Committee, and thus only the employer may determine whether an enumerated action was the “result of an allegation of misconduct,” triggering the Committee’s jurisdiction. Applying that interpretation to the facts of this case, the Court concluded the Committee did not have jurisdiction to commence a formal review of Earnest’s fitness to hold a credential. The grant of mandamus relief was thus affirmed. View "Earnest v. Com. on Teacher Credentialing" on Justia Law

A patient filed a complaint concerning Dr. Dore, a Board-certified psychiatrist. The Board discovered suspected irregularities in Dore's prescription of controlled substances. Dore declined to answer questions. The Board served her with an investigative subpoena seeking medical records supporting the prescription of the controlled substances to a family member and with investigative interrogatories requesting information about the family member's treatment and employment with Dore. Dore refused to produce the records and objected to the interrogatories. Her family member objected to the subpoena.The Board sought an order compelling compliance and provided reports from the Controlled Substance Utilization Review and Evaluation System (CURES) database. A Board-certified psychiatrist opined it was necessary to obtain the family member’s medical records to evaluate whether Dore complied with the standard of care, noting an AMA ethics opinion counseling physicians against treating family members except in emergencies. Dore's expert, a psychiatrist and licensed California attorney, disagreed with the assertion that prescribing controlled substances to family members presumptively violates the standard of care. The family member explained his reason for seeking treatment from Dore, identifying the medications she prescribed, and describing the treatment she provided.The court of appeal affirmed the trial court, which ordered compliance, impliedly concluding the Board established good cause to justify the production of the family member’s private medical information. The Board had a compelling interest in investigating Dore’s allegedly improper conduct. View "Kirchmeyer v. Helios Psychiatry Inc." on Justia Law

With new counsel, a client sues his former attorneys, alleging they accepted $27,500 in fees from him but did not perform the promised legal services. New counsel engages in communications via email and telephone with the former attorneys’ representative and discusses the possible filing of a State Bar claim. The former attorneys file a cross-complaint against the client and his new counsel for extortion, among other claims. The client and his new counsel file an anti-SLAPP motion, which the trial court granted.   The Second Appellate District affirmed. The court found that none of the communications presents extortion as a matter of law. The court concluded that cross-defendants made the threshold showing that the cross-complainants’ complaint is based on protected activity and thus subject to the anti-SLAPP statute. The court found that the cross-complainants did not carry their burden of showing a probability of overcoming cross-defendants’ litigation privilege defense. Accordingly, the trial court properly granted the special motions to strike the cross-complaint. View "Geragos v. Abelyan" on Justia Law

Plaintiffs sued Defendant and the law firm (collectively, the lawyers) for legal malpractice on the theory that the lawyers in drafting the LLC operating agreements did not adhere to the intent of their mother’s trust. The lawyers moved for summary judgment on three grounds—namely, (1) they owed Plaintiffs no duty of care, (2) Plaintiffs’ claim was time-barred, and (3) the parties had too contingent of an interest to have standing to sue. The trial court granted summary judgment. Specifically, the court ruled that Plaintiffs had presented “no evidence of decedent’s” intent to disinherit specific grandchildren from obtaining membership interests in the LLCs, such that the lawyers owed Plaintiffs no duty to effectuate that intent.   The Second Appellate District affirmed. The court concluded that the lawyers did not owe Plaintiffs a duty to draft the LLC operating agreements in a way that disinherited decedent’s grandchildren because decedent’s intent to disinherit the specific grandchildren from being assigned any interest in the LLCs was not, as a matter of law, clear, certain or undisputed. Further, the court wrote that because summary judgment was properly granted due to the absence of any duty running from the lawyers to Plaintiffs, the court does not have occasion to reach the alternative grounds for affirmance (namely, that Plaintiffs’ claims are time-barred or that the parties lack standing.) View "Gordon v. Ervin Cohen & Jessup LLP" on Justia Law

An assistant professor at a California public university submitted four articles on topics in her field of study to various academic journals unaffiliated with her university. All four of those articles were later either retracted or corrected by the journals, at least in part due to inaccurate references or text overlap from uncited sources. Soon after that, the professor left her position at the university. A third party investigating the article retractions sent the university a request under the California Public Records Act (CPRA) seeking certain postpublication communications between the professor, the university, and the journals regarding the retracted articles. The university determined the requested documents were subject to disclosure; the professor disagreed, filed a petition for writ of mandate, and sought a preliminary injunction to prevent disclosure. The trial court denied the professor’s motion for preliminary injunction, concluding she had not met her burden of establishing a likelihood of prevailing on the merits. Finding no abuse of discretion, the Court of Appeal affirmed: the requested communications qualified as public records under the CPRA, and the professor did not establish the records are otherwise exempt from disclosure. View "Iloh v. The Regents of the U. of Cal." on Justia Law

Pro se plaintiff Gary Wisner, M.D. filed a complaint alleging that defendants Dignity Health and the Dignity Health St. Joseph’s Medical Center (collectively, SJMC) falsely reported to the National Practitioner Data Bank (NPDB) that Wisner surrendered his clinical privileges while under criminal investigation for insurance fraud. The trial court granted a special motion to strike the complaint after concluding that Wisner’s claims arose from a protected activity and that Wisner failed to establish a probability of prevailing on the merits. Wisner contested both aspects of the trial court’s order, and he also argued the court erred by denying his motion to conduct limited discovery prior to the hearing on the anti-SLAPP motion. Finding no error, the Court of Appeal affirmed. View "Wisner v. Dignity Health" on Justia Law

The California Commission on Teacher Credentialing (Commission) and the Committee of Credentials of the Commission on Teacher Credentialing (Committee) appealed a judgment and peremptory writ of prohibition directing them to discontinue certain investigative proceedings against present and former public school administrators Kathy Little, Simone Kovats, and Debra Sather (together, the administrators). The Committee commenced an initial review of the administrators’ fitness to continue as credential holders in 2019. Nonparty John Villani was a special education teacher employed by the District between 2011 and 2014. Villani sued the District in 2016 alleging the District unlawfully retaliated against him after he reported that a teacher-aide, David Yoder, was “grooming” and paying inappropriate attention to some of the minor students in his care. Yoder was subsequently charged and convicted of several felony sex offenses against minors, including an offense against one of the aforementioned students. As relevant here, Villani’s lawsuit also alleged the administrators ignored his concerns about Yoder. The Commission learned about Villani’s lawsuit from a news article; the Commission thereafter launched its investigation. The administrators objected to the manner in which the Commission had obtained documents and information from Villani and argued the Committee had not established jurisdiction to review their credentials. The administrators demanded the Commission cease the investigation and the Committee drop the scheduled meetings. The Commission and Committee argued the trial court erred in ruling the administrators were excused from exhausting administrative remedies and misinterpreted Education Code section 44242.5, which defined the scope of the Committee’s jurisdiction. Finding no error, the Court of Appeal affirmed the judgment and writ. View "Little v. Com. on Teacher Credentialing" on Justia Law

On November 4, 2016, Kernan had an External Cephalic Version (ECV) procedure to rotate her healthy 39-week fetus from a breech position. The hospital recorded the ECV as successful. Post-procedure fetal monitoring was “reassuring.” The next day, Kernan could not detect fetal movement and returned to the hospital. After an ultrasound, doctors informed Kernan that she had suffered an intrauterine fetal demise and that they could not determine the cause of death. They noted that nothing in the literature linked ECV with fetal demise. Kernan delivered a stillborn baby on November 7. The delivery doctor, Vargas, told Kernan that he could not see any indicators as to why Kernan’s baby died. Kernan eventually ordered an autopsy. After months of delay due to Dr. Vargas not responding to Kernan’s requests to review the autopsy report with her, Kernan met with Dr. Kerns on July 10, 2017, and learned that doctors had discussed her case during a morbidity and mortality conference. Kernan claims she first became subjectively suspicious of medical negligence during that meeting. On November 6, 2017, Kernan served notice of her intention to file suit. Within 90 days, she filed her negligence complaint.The court rejected the suit as time-barred under Code of Civil Procedure 340.5’s one-year limitations period. The court of appeal reversed. The hospital’s records demonstrate that reasonable minds could differ as to whether Kernan should have suspected negligent performance of the ECV on November 5, 2016. View "Kernan v. Regents of the University of California" on Justia Law

Wang sued her former attorney Nesse, alleging professional malpractice in his representation of Wang in her marital dissolution action. Following Nesse’s death, his estate moved for summary judgment on the grounds that Wang’s complaint, filed on December 21, 2015, was barred by the one-year statute of limitations, Code of Civil Procedure section 340.6. According to Nesse’s estate, although Wang and Nesse filed a substitution of attorney form on December 30, 2014, Nesse’s representation of Wang had actually ended earlier, on December 3 or December 17 at the latest, when Wang “discharged” Nesse or “consented” to his withdrawal. The trial court agreed and granted the motion. The court of appeal reversed. There is a triable issue of material fact as to whether Nesse continued to represent her on December 21, 2014, so Nesse’s estate failed to establish that the statute of limitations bars her complaint as a matter of law. View "Wang v. Nesse" on Justia Law

For about 10 years Victaulic and three of its insurers, members of the American Insurance Group (AIG), have been engaged in litigation. One case is this lawsuit filed by Victaulic in 2012; in 2013, the Pillsbury law firm became counsel for Victaulic and has represented it since, ultimately winning a $56 million judgment. In 2018, that judgment was reversed based on a combination of errors by the trial judge. Following remand, Victaulic filed an amended complaint; the vigorous litigation continued. In 2021 the insurers learned that two attorneys who had done work for a claims-handling arm of AIG had recently joined the Pillsbury firm, about six years after they left employment at the earlier firm. The insurers moved to disqualify the lawyers and the Pillsbury firm, generating thousands of pages of pleadings, declarations, and exhibits, and two hearings.The trial court concluded that the insurers failed to meet their burden. The court of appeal affirmed. There was no showing that the two attorneys had any confidential information and no “direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation.” View "Victaulic Co. v. American Home Assurance Co." on Justia Law