Author: WorkCompAcademy

Plaintiff T.J. Simers was a well-known and sometimes controversial columnist for Los Angeles Times Communications LLC. In August 2013, plaintiff was demoted to a senior reporter. Shortly thereafter, he obtained a position as a columnist with a rival newspaper and filed this action against The Times for constructive termination and age and disability discrimination in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).

There have been three jury trials in this case.

In the first trial, the jury found defendant was liable for both discrimination and constructive termination. The jury awarded plaintiff $2,137,391 in economic damages for harm caused by his constructive termination, and $5 million in noneconomic damages, without identifying which noneconomic damages were caused by the constructive termination and which were caused by the discrimination. The trial court granted defendant’s motion for judgment notwithstanding the verdict (JNOV) on plaintiff’s constructive termination claim and granted a new trial on noneconomic damages.

Both parties appealed. The Court of Appeal affirmed the trial court’s orders and remanded the case for a new trial on damages for plaintiff’s demotion. (Simers v. Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248 (Simers).)

In the second trial, the jury awarded plaintiff $15.4 million in noneconomic damages. The trial court, however, granted defendant’s motion for a new trial on two grounds.

In the third trial, again the only issue was the amount of noneconomic damages plaintiff could recover for his demotion. Plaintiff’s counsel asked the jury to return a verdict between $30 and $50 million, and defense counsel argued that an award between $500,000 and $1 million was reasonable. The jury returned a verdict of $1.25 million. The jury’s verdict was the exact amount of an offer defendant made on December 7, 2021, shortly before the third trial began, to settle under Code of Civil Procedure section 998 (section 998).

In June 2022, defendant paid plaintiff $1,292,123.29 in partial satisfaction of the judgment.

In May 2022, plaintiff filed a motion for attorney fees, requesting fees of more than $15.5 million. This consisted of $7,860,475, based on hours spent multiplied by hourly rates (the “lodestar” amount), with a 2.0 multiplier based on contingent risk and other factors. The time spent included time on all three trials and on the appeals after the first trial.Plaintiff claimed costs of $577,890.29.

Defendant opposed the attorney fee motion. Among other contentions, defendant argued that section 998 precluded any fee recovery after the December 7, 2021 section 998 offer; that plaintiff could not recover fees for work on the second trial because that would reward plaintiff for his counsel’s egregious misconduct; and that plaintiff could not recover fees for the appeals after the first trial because he did not prevail on his appeal and this court’s disposition stated that the parties would bear their own costs.

The trial court awarded plaintiff $3,264,906 in attorney fees. The court granted defendant’s motion to tax costs in part, allowing plaintiff to recover $210,882.55 in costs. The defendant and the plaintiff both appealed. After the briefs were filed in these appeals, plaintiff T.J. Simers passed away. The motion of Virginia Simers, the sole beneficiary and executor of Mr. Simers’s will, to substitute herself as plaintiff was granted.

The Court of Appeal found “no abuse of discretion in any part of the trial court’s order” in the published case of Simers v. Los Angeles Times Communications LLC -B323715 (August 2024)

The primary issue is the defendant’s contention that the plaintiff should not have recovered any fees for counsel’s work on the second trial, because the third trial was necessitated by counsel’s misconduct in closing argument at the second trial. Defendant also challenges fees awarded for certain work on plaintiff’s unsuccessful appeal after the first trial.

Plaintiff contends he should recover his attorney fees for this appeal, despite the trial court’s order that he cannot recover any fees or costs incurred after he rejected the defendant’s offer of compromise on December 7, 2021, shortly before the third trial, and failed to obtain a more favorable judgment.

“Section 998 expressly requires the court to exclude postoffer costs in determining whether the plaintiff has obtained a more favorable judgment than the offer. (§ 998, subd. (c)(2)(A).) That is exactly what the trial court did.”

The Court off Appeal said it “cannot find any failure to ‘adequately’ or ‘independently’ consider the factors defendant raises. The court clearly stated that it considered the misconduct that necessitated a third trial in making its award of fees that ‘as a whole are reasonable.’ We find no basis to conclude the trial court abused its discretion.”

California’s Division of Occupational Safety and Health (Cal/OSHA) cited nine employers in Sun Valley within the greater Los Angeles area following efforts to address the growing number of silicosis cases among stone workers in California.

As California faces an increase in silicosis cases among stone workers, Cal/OSHA continues ramping up enforcement efforts and today announced citing nine more employers, this time in Sun Valley. The safety violations include over $168,000 in fines. Cal/OSHA cited the following employers:

– – Miguel Clavel – Total Fine: $18,320
– – Gasper Marble and Tile – Total Fine: $18,785
– – Jose Sandoval Marble and Granite – Total Fine: $18,785
– – Valley Marble – Total Fine: $18,785
– – Edward Ponce – Total Fine: $18,785
– – Durango Marble – Total Fine: $18,785
– – Nacho Brothers Marble Inc. – Total Fine: $18,785
– – M & M Three Marble Inc. – Total Fine: $18,785
– – LB Quality Stone Experts Inc. – Total Fine: $18,785

The Van Nuys District Office conducted inspections and it was determined that all the employers were in violation of multiple Title 8 Safety and Health Regulations, including failure to use methods to effectively suppress dust and failed to provide their employees with full-face, tight-fitting power air purifying respirators.

Cal/OSHA’s workplace safety laws and emergency temporary standard are key components to ensure that workers are safe. Increasing awareness to employers and employees of the dangerous effects of inhaling respirable crystalline silica dust from tasks like grinding, drilling and cutting, can help save lives and avoid incurable health conditions like silicosis, lung cancer and kidney diseases.

With cases of silicosis increasing across the state, Cal/OSHA has intensified its enforcement and education efforts. In December of last year an emergency temporary standard was adopted to enhance existing guidelines for respirable crystalline silica hazards. The Occupational Safety and Health Standards Board (OSHSB) voted to readopt the emergency temporary standard at its August 15 meeting.

DIR and Cal/OSHA recently launched a bilingual public awareness and education campaign that offers employers and workers resources and information about the proper use of safety equipment and safe worksite practices. The campaign website, worksafewithsilica.org, also provides vital information for workers on workplace safety rights and how to report safety violations.

Since 2019, the California Department of Public Health (CDPH) has confirmed a total of 176 cases of silicosis related to engineered stone, including at least 13 deaths and at least 19 individuals who have undergone a lung transplant. A total of 105 of the 176 cases occurred in Los Angeles County, with the remainder occurring in other parts of the state.

Disbarred 85 year old plaintiffs’ personal injury attorney Thomas Vincent Girard,of Seal Beach California, was found guilty this week of leading a years-long scheme in which he embezzled tens of millions of dollars of money that belonged to his clients, some of whom awaited payment for treatment of severe physical injuries.He was found guilty of four counts of wire fraud.

Throughout his more than 50-year career, Girardi had two claims to fame: he played a key role in winning a $333 million settlement for residents of Hinkley, California, in their lawsuit against Pacific Gas & Electric, a case that later became the basis for the film “Erin Brockovich.” Decades later, he and his wife Erika Jayne were cast on the reality show “Real Housewives of Beverly Hills.”

According to evidence presented at a 13-day trial, Girardi – a once-powerful figure in California’s legal community – ran the now-defunct law firm Girardi Keese. For years, Girardi misappropriated and embezzled millions of dollars from client trust accounts at his law firm. The scheme involved defendant Girardi stealing millions of dollars in client settlement funds and failing to pay Girardi Keese clients – some of whom had suffered serious injuries in accidents – the money they were owed.

In carrying out this scheme, from October 2010 to late 2020, Girardi provided a litany of lies for failure to pay clients and directed a law firm employee to pay previously defrauded clients or other unrelated expenditures. Girardi sent lulling communications to the clients that, among other things, falsely denied that the settlement proceeds had been paid and falsely claimed that Girardi Keese could not pay the settlement proceeds to clients until certain purported requirements had been met. These bogus requirements included addressing supposed tax obligations, settling bankruptcy claims, obtaining supposedly necessary authorizations from judges, and satisfying other debts.

Girardi diverted tens of millions of dollars from his law firm’s operating account to pay illegitimate expenses, including more than $25 million to pay the expenses of EJ Global, a company formed by his wife related to her entertainment career, as well as spent millions of dollars of Girardi Keese funds on private jet travel, jewelry, luxury cars, and exclusive golf and social clubs.

At the end of 2020, as Girardi and his law firm faced mounting legal problems related to his years-long theft of client funds, Girardi Keese was forced into involuntary bankruptcy. The State Bar of California disbarred Girardi in July 2022.

United States District Judge Josephine L. Staton scheduled a December 6 sentencing hearing, at which time Girardi will face a statutory maximum sentence of 20 years in federal prison for each count.

Relatedly, co-defendant Christopher Kazuo Kamon, 50, formerly of Encino and Palos Verdes and who was residing in The Bahamas at the time of his November 2022 arrest on a federal criminal complaint, awaits trial in this matter in January 2025.

Kamon, the former chief financial officer at Girardi Keese, is charged with multiple fraud counts for allegedly aiding and abetting Girardi’s scheme to defraud clients. Kamon allegedly also embezzled millions of dollars from the law firm’s accounts for his own personal enrichment. Kamon, who remains in federal custody, has pleaded not guilty to these charges.

Girardi, Kamon, and David R. Lira, Girardi’s son-in-law and a former lawyer at Girardi Keese, also face federal fraud charges in Chicago. Trial in that case is scheduled for March 3, 2025.

In 2010, Ari Resnik Resnick and Dr. Ismael Silva, an orthopedic surgery specialist, discussed forming a factoring business to purchase medical accounts receivable, including workers’ compensation liens, from healthcare treatment providers at a discount and then collect on them. They agreed to each invest $500,000 into the new company.

Silva owned or controlled several entities even if he is not formally named as an officer, owner, or manager, including cross-defendants Healthcare Management Associates, Inc.(HMA), National Intra-Operative Monitoring, Inc. (NIOM), Orangewood Surgical Center, LLC (Orangewood), Starbase, Inc. (Starbase), and American Financial Investment Services, Inc. (AFIS), and non-parties Healthpointe Medical Group, Inc. (Healthpointe) and ProCare.

Other than NIOM and Healthpointe, these companies were headed, on paper, by Silva’s relatives, including cross-defendants Mary Aviles for HMA, James Aviles for Orangewood and ProCare, and Silva’s son, Geli Silva (Geli) for AFIS and Starbase, and non-party Medina for ProCare.

Healthcare Financial Solutions, LLC was a company that factored healthcare-related receivables. When the parties that formed it, Ari Resnick through R.O.A.R. Management Company, Inc. and Dr. Ismael Silva, Jr. through Healthcare Management Associates, Inc, could not agree how to dissolve it, litigation commenced. HMA sued Resnick, ROAR, and another Resnick-owned company for breach of the HFS operating agreement, theft of trade secrets, and various business-related torts.

Resnick and ROAR (the Resnick parties) filed a cross-complaint against HMA and another individual for declaratory relief and breach of fiduciary duty. The Resnick parties assert that during the litigation they learned that a decade’s worth of Silva’s past assurances, including his statements about the lack of merit to numerous prior civil suits and a criminal case against Silva, were untrue.

The Resnick parties then filed a first amended cross-complaint (FAXC), asserting Racketeer Influenced and Corrupt Organizations Act (RICO; 18 U.S.C. § 1961 et seq.) claims and a civil fraud cause of action against Silva and others allegedly affiliated with him based on Silva’s alleged misrepresentations. Silva and the cross-defendants named in these RICO and fraud claims either filed or joined in an anti-SLAPP motion to strike portions of the FAXC. Silva and his fellow cross-defendants argued certain allegations of the FAXC described statements made in connection with prior litigation and, thus, were protected activity. They further argued the Resnick parties had not demonstrated that these claims had minimal merit.

The trial court denied the special motion to strike. It found the challenged allegations were not protected activity because they related to statements about judicial proceedings and not to statements made in connection with judicial proceedings. As its analysis of the first prong of section 425.16 was dispositive, the court did not address whether the Resnick parties’ claims had minimal merit.

Silva and his fellow cross-defendants argued on appeal that the trial court erred because statements made about legal proceedings to interested nonparties are protected conduct under the anti-SLAPP statute, and the Resnick parties failed to show those allegations have minimal merit.

The Resnick parties counter that the trial court properly denied the special motion to strike because the challenged portions of the FAXC are only context or evidence of the wrongs complained of, and do not supply the elements of any cause of action. To the extent any of the subject allegations involve protected activity, the Resnick parties have abandoned any effort on appeal to contend such claims have minimal merit. Instead, the Resnick parties argue the appropriate disposition would be to strike only those claims involving protected activity and not their causes of action, which they contend they can state without any stricken allegations.

The allegations challenged by the special motion to strike fall into four categories: (1) statements Silva or other cross-defendants made about other lawsuits to interested parties; (2) statements Silva made in other lawsuits (most of which he made in an unrelated family law divorce case); (3) information the Resnick parties learned from the other lawsuits; and (4) allegations that appear to have nothing to do with any prior lawsuit.

As to the first category, case law establishes that statements by a litigant about a lawsuit to an interested person are protected conduct and, here, those protected statements supply at least one element of the RICO and fraud causes of action alleged in the FAXC. However, as to the remaining categories, none of the allegations concerning litigation-related statements supply an element of the challenged claims.

Accordingly, the Court of Appeal reversed in part, and remand with instructions to strike only the statements in the first category. It affirmed the denial of the special motion to strike as to the remaining allegations in the unpublished case of Healthcare Management v. R.O.A.R. Management -B330809 (August 2024)

Of interest to the workers’ compensation community are the allegations of the FAXC. The FAXC alleged that as a result of the litigation, the Resnick parties more closely scrutinized Silva’s representations and actions since 2010, ” ‘connect[ed] the dots,’ ” and determined cross-defendants had defrauded them. The allegations also show the inter relatedness and entanglement of the multitude of organizations that were involved. And that Silva, his companies, and his family members were involved in lawsuits and a criminal prosecution.

The list of “dots” connected by the Resnik parties begins by learning that in 2011, a physician at Healthpointe sued it and Silva in Orange County Superior Court, asserting claims that included fraud and breach of contract. Among other things, the physician alleged that Silva overbilled insurance companies for physician services at Healthpointe, pressured physicians to perform unnecessary medical procedures, and concealed conflicts of interest from Healthpointe patients. The FAXC does not state when the Resnick parties learned of this lawsuit or that Silva made any representations to Resnick about this lawsuit.

On October 16, 2013, WorkCompCentral, a workers’ compensation industry publication, reported that Healthpointe was involved in a qui tam case asserting it had overbilled for procedures and devices, used counterfeit medical implant hardware, and paid illegal kickbacks to doctors. The publication further asserted Silva controlled Healthpointe. In response to this article, Silva reassured Resnick there was no problem with HFS continuing to accept business generated by Healthpointe. However, HFS scaled back its purchase of liens from Healthpointe. Silva and Mary Aviles formed ProCare, which accepted lien referrals from Healthpointe.

In May 2015, Resnick discovered that Silva, Starbase, and Healthpointe had been named in a civil RICO lawsuit filed by the State Compensation Insurance Fund (SCIF). When Resnick emailed Silva about the lawsuit, Silva assured Resnick that the allegations were not true, but that they might have to deal with bad publicity.

In 2017, the Orange County District Attorney filed a felony complaint against Silva and Geli for fraud and kickbacks related to patient and client referrals. The complaint asserted that Healthpointe doctors referred workers’ compensation applicants for urine toxicology tests administered by Christopher King and Tanya Moreland King, and Silva aided the Kings in submitting fraudulent claims for payment. In exchange, the Kings made payments to Starbase. Resnick learned about the lawsuit, but Silva assured Resnick that Starbase and AFIS would cooperate to protect HFS and that Geli, but not Starbase, had been named as a criminal defendant.

An Orange County man was sentenced to 87 months in federal prison for defrauding companies who in mid-2020 paid more than $3 million for COVID-related medical protective equipment that was never delivered.

Christopher John Badsey, 63, of Lake Forest, was sentenced by United States District Judge Josephine L. Staton, who also ordered him to pay $1,938,990 in restitution.

Badsey pleaded guilty in April 2023 to four counts of wire fraud.

In June and July of 2020, Badsey lied to three victim companies when he told them he had access to millions of boxes of nitrile gloves through his Irvine-based company, First Defense International Security Services Corp. (FDI).

This type of personal protective equipment was in high demand and short supply during the early months of the COVID-19 pandemic.

Badsey agreed by contract to sell millions of boxes of gloves to each of the three companies. But he told the companies’ representatives that before they could inspect the gloves, which he claimed were stored in a Los Angeles warehouse, the companies would be required to pay deposits of upwards of $1 million to FDI.

In fact, Badsey did not have any gloves stored in any warehouse.

Badsey instructed the companies to wire the deposits to accounts controlled by himself, FDI or a co-schemer. Relying on Badsey’s false statements, the companies wired a total of $3,231,990 to these accounts.

After receiving the deposits, Badsey allegedly instructed victims to travel to the Los Angeles area, where he claimed the gloves were stored in a warehouse. But when victims attempted to visit the warehouse, Badsey and other FDI employees allegedly provided excuses as to why the gloves could neither be inspected, nor delivered, to the victims.

Nitrile gloves were never provided to the victims, and Badsey is alleged to have absconded with the deposit money. Badsey used the deposit money to make expensive purchases, all while stringing would-be purchasers along with false stories, including absurd claims that government agents were blocking access to his warehouse of gloves, prosecutors argued in a sentencing memorandum.

He has forfeited all title and interest in money or items derived from his crimes, including a yacht, a pontoon boat, two Mercedes-Benz automobiles, two Ford pickup trucks, an RV, a tractor, three ATVs, miscellaneous fishing equipment, and $58,923 in cash.

The FBI investigated this matter.  Assistant United States Attorneys Kristin N. Spencer and Melissa S. Rabbani of the Santa Ana Branch Office prosecuted this case.