Tag: 2023 News

Abraham Degala was attacked and seriously injured by unknown assailants while he was working at a construction site at the Hunters Point East-West housing complex in San Francisco.

The Hunters Point East-West construction project involved the rehabilitation of 27 buildings containing residential units. John Stewart Company (JSC) was the general partner of the limited partnership that owned the property, and as such signed the contract hiring Cahill Contractors, Inc. as the general contractor on the project. Cahill in turn hired Janus Corporation as a subcontractor to perform demolition work at the site. Abraham Degala was an employee of Janus, and one of its foremen. The project site was located in an area known to have a high rate of crime.

JSC and Cahill jointly made decisions as to the appropriate amount of site security. JSC and Cahill had weekly discussions about site security because of ongoing concerns about the safety of property and people at the site.

In the months and weeks leading up to the January 2017 attack on Degala, Cahill changed security measures from time to time, including closing the project site, in part as an apparent response to incidents in the neighborhood. In August 2016, Cahill stopped weekday overtime work at part of the project because of concerns about worker safety arising from neighborhood tensions. In mid-November 2016, after a shooting in the neighborhood, Cahill instructed workers to stop work before sundown. Later that month, after another shooting, Cahill instructed workers to stay indoors as much as possible while working and to eat lunch and take breaks inside.

The physical attack on Degala took place on the walkway between the two buildings, which was outside the fence line of the construction site. As an employee of Janus, Degala was covered by workers compensation insurance for his injuries.

Degala sued JSC and Cahill, seeking damages on the basis of negligence and premises liability. JSC and Cahill filed separate motions for summary judgment. The trial court granted the motions and judgments were entered for defendants.

Degala appealed, and the court of appeal concluded there are triable issues of fact as to whether the site owner and general contractor are liable to Degala under a retained control theory. Thus it reversed and remanded in the published case of Degala v. John Stewart Company  -A163130 (February 2023).

Because Degala, as an injured employee of a contractor (Janus), sued the hirer of the contractor (Cahill) and the landowner (JSC) in tort to recover for his injuries, this case implicates the Privette doctrine, a long-standing common law principle that a hirer or landowner is ordinarily not liable for injuries to contract workers, as set forth in Privette v. Superior Court (1993) 5 Cal.4th 689 and subsequent cases.

The trial court rejected Degala’s argument that defendants could be liable to him under the Hooker exception to the Privette doctrine announced in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 201-202 (Hooker) which applies when the hirer retains control over any part of the contractor’s work and exercises that control in a way that affirmatively contributes to the plaintiff’s injury.

The California Supreme Court in Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 269-270 recognized exceptions to the Privette doctrine, which “apply where delegation is either ineffective or incomplete.”

At issue in this case is the exception for incomplete delegation, recognized in Hooker. “[W]hen the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the [contractor’s] employee’s injury, the hirer may be liable in tort to the [contractor’s] employee.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 671 (Kinsman) [discussing Hooker, supra].)

Accordingly, “[i]f a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.” (Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446 (Tverberg).)

Degala argues that the evidence shows that the site security measures in place at the time he was attacked were not reasonable in the circumstances; that JSC and Cahill were negligent in configuring the fences, removing security guards, and failing to monitor the on-site cameras during the day; and that their negligence contributed to his injuries.

“Whether the measures taken by JSC and Cahill were reasonable, and whether or to what extent the alleged unreasonableness of those measures contributed to Degala’s injuries are all questions of fact for a jury to resolve. On the record here, these issues cannot be resolved as a matter of law, and therefore it was error to grant summary judgment. ”

The U.S. Supreme Court gave two doctors found guilty of misusing their licenses in the midst of the U.S. opioid epidemic to write thousands of prescriptions for addictive pain medications another chance to challenge their convictions.

Xiulu Ruan and Shakeel Kahn are medical doctors licensed to prescribe controlled substances. Each was tried for violating 21 U. S. C. §841, which makes it a federal crime, “[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance.”

A federal regulation authorizes registered doctors to dispense controlled substances via prescription, but only if the prescription is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR §1306.04(a).

At issue in Ruan’s and Kahn’s trials was the mens rea – or state of mind – required to convict under §841 for distributing controlled substances not “as authorized.”

Ruan and Kahn each contested the jury instructions pertaining to mens rea given at their trials, and each was ultimately convicted under §841 for prescribing in an unauthorized manner. Ruan, who practiced in Alabama, and Kahn, who practiced in Arizona and then Wyoming, were sentenced to 21 and 25 years in prison, respectively, in separate criminal cases.

Their convictions were separately affirmed by the Courts of Appeals for the 10th and 11th circuits.

Both doctors appealed their convictions to the U.S. Supreme Court which overturned their convictions in the combined case of Xiulu RUAN, Petitioner v. United States and Shakeel Kahn, Petitioner v. United States. Nos. 20-1410 and 21-5261. (June 2022)

The question before the Supreme Court concerned the state of mind that the Government must prove to convict these doctors of violating the statute. The cases concerned the good faith defense available to defendants charged under the U.S. Controlled Substances Act.

The Government argued that requiring it to prove that a doctor knowingly or intentionally acted not “as authorized” will allow bad-apple doctors to escape liability by claiming idiosyncratic views about their prescribing authority.

Ultimately SCOTUS held that the statute’s “knowingly or intentionally” mens rea applies to authorization. After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.

Additionally, the court rejected the “bad-apple” argument, that the additional burden on the government to prove would allow doctors to escape criminal liability much more easily, by stating that such an argument could be applied to almost all cases.

The court vacated the decisions and remanded the cases for further proceedings in its 9-0 ruling. On remand, the 10 Circuit has now issued its published opinion in the case of United States v Shakeel Kahn – 19-8054 (February 2023).

During his testimony at trial, Dr. Kahn did not contest the fact that he wrote the relevant prescriptions, nor did he contest that the testifying patients were abusing or selling their medications. The central issue put to the jury in Dr. Kahn’s trial was his intent in issuing the charged prescriptions.

It concluded that the jury instructions issued in Dr. Kahn’s case are inconsistent with the mens rea standard set by the Supreme Court. Each of Dr. Kahn’s convictions was impacted by erroneous instructions in a way that prejudiced him, and, therefore, it remand with directions to vacate his convictions on all counts, and remand for a new trial.

In response to “the challenges facing the Alameda County Medical Center arising from changes in the public and private health industries,” the Legislature in 1997 enacted Health and Safety Code section 101850, authorizing the Alameda County Board of Supervisors “to create a hospital authority.” (Health & Saf. Code, § 101850,4 subd. (a)(1).)

In turn, the Alameda County Board of Supervisors created respondent hospital authority to govern the various hospital facilities formerly known as the Alameda County Medical Center.  In so doing, the board deemed respondent “a public agency for purposes of eligibility with respect to grants and other funding and loan guarantee programs pursuant to” the enabling statute.

Tamelin Stone and Amanda Kunwar worked for Alameda Health System as a medical assistant and a licensed vocational nurse respectively.

In their first amended complaint against Alameda Health System, Stone and Kunwar alleged seven class action claims related to wages and hours, and six individual claims for race and sex discrimination. They alleged that Alameda “automatically deducted ½ hour from each workday” as if to account for a meal period, when in fact, employees “were not allowed or discouraged from clocking out for meal periods.” This alleged conduct formed the basis of seven class action claims.

Alameda demurred, arguing that the first six claims were “not authorized against public entities under any of the cited Labor Code sections.” As to the seventh claim, Alameda contended that it was not a “person” capable of being sued under PAGA, that the “PAGA claim [was] derivative of” the first six unauthorized claims, and that Government Code section 818 exempted Alameda from liability.

The trial court sustained the demurrer as to all seven class action claims. With respect to the first six, the trial court reasoned that Alameda was a “statutorily created public agency” beyond the reach of the Labor Code sections and Industrial Welfare Commission (IWC) Wage Order invoked in the complaint.

As to the seventh, a PAGA claim (PAGA, § 2698 et seq.), the trial court held that such an action would not lie because respondent is not a “person” within the meaning of section, there was no underlying statutory violation from which the PAGA claim could derive, and respondent’s “public agency” status exempted it from paying punitive damages.

The court of appeal affirmed in part and reversed in part in the published case of Stone v. Alameda Health System -A164021(February 2023).

The court of appeal reviewed following issues: (1) whether the “sovereign powers” doctrine renders respondent liable for certain Labor Code violations, notwithstanding the general rule of statutory construction exempting government agencies from such liability; (2) whether respondent is an exempt “municipal corporation” under section 220, subdivision (b); (3) whether respondent is an exempt “governmental entity” under section 226, subdivision (i); and (4) whether respondent can be sued under the Private Attorneys General Act (PAGA, § 2698 et seq.).

Subjecting Alameda to liability for the first, second, and third causes of action would not infringe upon any sovereign governmental powers. Thus, the trial court erred by finding that respondent was not included within the statutes underlying those causes of action and in sustaining the demurrer as to those claims.

With regard to their fifth and sixth causes of action, Section 220, subdivision (b), provides that section 204 does “not apply to the payment of wages of employees directly employed by any county, incorporated city, or town or other municipal corporation.” Because it is beyond dispute that respondent is not a county, incorporated city, or town, “the trial court erred in sustaining the demurrer as to the fifth and sixth causes of action.”

With regard to the fourth cause of action, Section 226, subdivision (a), requires employers to provide employees with “an accurate itemized statement in writing showing” the employee’s wages and hours worked, along with other information. Subdivision (i) exempts from this requirement the state, . . . any city, county, city and county, district, and “any other governmental entity.” The plain meaning of “other governmental entity” is expansive. The demurrer was properly sustained as to the fourth cause of action.

With regard to the PAGA claim in the seventh cause of action, under section 18, a “person” is “any person, association, organization, partnership, business trust, limited liability company, or corporation.” Alameda is a public entity of some sort and therefore is not a “person” when that term is used in PAGA. However, PAGA’s “person” requirement is limited to statutory violations subject to the default penalties set forth in section 2699, subdivision (f); it does not apply to those statutory violations “for which a civil penalty is specifically provided.”

A civil penalty is specifically provided for by at least two of the statutes underlying appellants’ class action claims. “For that reason, section 18 provides no ground for sustaining the demurrer as to the seventh cause of action.”

Finally, there is the trial court’s citation of Government Code section 818, which provides that “a public entity is not liable for . . . damages imposed primarily for the sake of example and by way of punishing the defendant.” However, PAGA penalties are not punitive damages. Consequently, because PAGA penalties are not punitive damages, section 818 presents no obstacle to appellants’ seventh class action claim.

Thus the court affirmed the order as to the fourth cause of action and reverse it as to the first, second, third, fifth, sixth, and seventh.

Oscar Martinez was injured while employed by Securita America Inc. on May 3, 3017 and after treatment was released to return to full duty work by June 12, 2017. He returned to work for employer Security America doing the same duties as before the date of injury.

In addition the PQME opined that Martinez is capable of performing his job duties without any restrictions, and noted that “he is currently working in his job duties within his ability. He may continue to do so without any restrictions”. (

There is no dispute that the Martinez continued to work for Security America, Inc. until that employer’s contract for providing security for the MTA through Friday November 10, 2017 ended.

Before the end date of the contract, the security company who took over the contract, North America Security Company’s supervisor went to the location where Martinez was working and informed him of the change in contract with the MTA and that he would be staying on at the same location doing the same job at the same pay starting on November 13, 2017.

Thereafter he started working for the new security company North America Security Company starting on his next scheduled work day Monday November 13, 2017.

Martinez worked at the same location, doing the same job as he did for Security America, Inc. and still works at that location for North America Security. Although his uniform was different and that some of the company policies were different, he is essentially doing the same job then and now as he did for defendant Security America, Inc.

Therefore the WCJ found that Martinez was not entitled to a Supplemental Job Displacement Benefit (SJDB) voucher. Reconsideration was granted, and SJDB.was awarded, in the panel decision of Martinez v Security America, Inc., – ADJ10887310 (January 2023)

Labor Code Section 4658.7(b) provides that an injured worker is entitled to a SJDB voucher if the industrial injury causes permanent partial disability and the employer fails to make an offer of regular, modified, or alternative work. Section 4658.7(b)(1) and (2) and Rule 10133.31(b) provide that the offer of regular, modified, or alternative work must be made no later than 60 days after receipt of the Physician’s Return to Work & Voucher Report (Form DWC-AD 10133.36) and must last for at least 12 months.

However, an “employee who has lost no time from work or has returned to the same job for the same employer, is deemed to have been offered and accepted regular work in accordance with the criteria set forth in Labor Code section 4658.7(b).” (Cal. Code of Regs., tit. 8, § 10133.31(c).

According to the panel qualified medical evaluator (PQME), Martinez sustained a 2% whole person impairment to the lower extremity. This resulted in a 3% permanent disability to the lower extremity. A 3% permanent disability rating to the lower extremity entitles Martinez to a SJDB voucher under section 4658.7(b), unless defendant made an offer of regular, modified, or alternative work lasting at least 12 months. (§ 4658.7(b).) The employer holds the burden of proof to show that it offered applicant regular, modified, or alternative work.

Defendant does not contend that it made an actual offer of regular, modified, or alternative work to Martinez. Rather, defendant relies on Rule 10133.31(c) for its position that it should be deemed to have offered regular work. Rule 10133.31(c) deems an employer to have offered regular work when the employee lost no time from work or has returned to the same job for the same employer.

Here, Martinez lost approximately one month of work following the injury. Although he returned to his regular job with the same employer, without restrictions, he worked for approximately five months before he was laid off, thus failing to meet the requirement that the offer of regular work last at least 12 months.

While he performed essentially the same job in his subsequent employment, it was with a different employer. Rule 10133.31(c) specifically states that an employee must return to the same job for the same employer in order for the employer to be deemed to have offered regular work.

The burden of proof remains with defendant to show that it offered regular, modified or alternative work. (Opus One Labs v. Workers’ Comp. Appeals Bd. (Fndkyan)(2019) 84 Cal. Comp. Cases 634, 636 [2019 Cal. Wrk. Comp. LEXIS 51] (writ denied).)

“We conclude that defendant has not met its burden of proof to show that it offered regular, modified, or alternative work to applicant for at least 12 months. The subsequent employment cannot be added to meet the 12 months requirement because the subsequent employment was with a different employer.”

“Accordingly, we amend the March 13, 2020 Finding and Order to find that applicant is entitled to a SJDB voucher.”

Former plaintiffs’ personal injury lawyer Thomas Vincent Girardi has been indicted by a federal grand jury for allegedly embezzling more than $15 million from several of his legal clients.

Girardi, 83, of Seal Beach, who owned the downtown Los Angeles-based Girardi Keese law firm, is charged with five counts of wire fraud, a crime that carries a statutory maximum sentence of 20 years in federal prison.

Girardi, a once-powerful figure in California’s legal community until creditors forced his law firm into bankruptcy in December 2020, is expected to appear on Monday, February 6 at the United States District Court for arraignment. The State Bar of California disbarred Girardi in July 2022.

Also charged in the indictment is Christopher Kazuo Kamon, 49, 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. He remains in federal custody.

Kamon was the controller and chief financial officer of Girardi Keese from 2004 until December 2020. In this role, Kamon oversaw the law firm’s financial affairs, supervised its accounting department, and oversaw paying the firm’s expenses.

The indictment alleges that, from 2010 to December 2020, Girardi and Kamon fraudulently obtained more than $15 million that belonged to Girardi Keese clients.

In furtherance of their alleged scheme to defraud, Girardi negotiated settlements on behalf of clients, but then allegedly concealed the settlement’s true terms and lied about the disposition of the settlement proceeds.

Girardi and Kamon would allegedly cause the settlement proceeds to be deposited in or transferred to attorney trust accounts to which both men had access. Girardi and Kamon then embezzled and misappropriated settlement funds from these accounts for improper purposes, including paying other Girardi Keese clients whose settlement funds had previously been misappropriated and paying Girardi Keese’s payroll and other expenses. These additional expenses included credit card bills for Girardi and Kamon’s personal expenses.

To conceal the theft and misappropriation of client settlement money, Girardi and Kamon allegedly lied to clients, stating falsely, among other things, that the settlement money had not been paid. Girardi also allegedly falsely told clients that settlement proceeds could not be disbursed until certain purported requirements had been met, such as eliminating purported tax obligations, obtaining supposedly necessary authorizations from judges, and satisfying medical liens and other debts.

Girardi and Kamon allegedly also sent lulling payments to clients, falsely representing that the payments were “advances” on purportedly yet-to-be-received settlement proceeds that, in fact, had already been deposited in Girardi Keese accounts, or were “interest payments” on the settlement money that purportedly could not be paid to the clients until the fabricated requirements were met.

For example, in July 2019, Girardi negotiated a $17.5 million settlement of a lawsuit related to injuries sustained in a car accident by two clients and their child, who was paralyzed in the crash. The settlement agreement specified that the child’s portion of the settlement money would be placed in a trust and an annuity to be controlled by a third party, neither of which could be accessed by Girardi and Kamon.

The first installment of the settlement payment – $4 million – was transferred to a bank account that Girardi and Kamon controlled. Prior to that deposit, Girardi and Kamon allegedly transferred $1.45 million as a purported “advance” from the clients’ settlement funds. The indictment alleges that, in fact, this was money that came from different Girardi Keese clients. Girardi and Kamon then allegedly used the funds to pay for the law firm’s operating expenses unrelated to the car accident litigation.

On July 1, 2019, Girardi and Kamon allegedly caused a $2.5 million check that mostly was comprised of the car accident clients’ settlement money to be issued to a different client over half of whose $53 million settlement Girardi and Kamon had misappropriated years earlier.

In August 2019, a further payment of approximately $5,119,449 was deposited into a Girardi-controlled bank account. To lull the victim clients and prevent them from discovering that their settlement money had been misappropriated, Girardi and Kamon allegedly provided incremental lulling payments that comprised only a fraction of what the clients were owed.

Girardi also allegedly lied to the clients, telling them that the remaining settlement funds could only be paid after medical liens had been satisfied, court proceedings had concluded and Girardi had flown to Washington, D.C., to meet with government officials to remove the settlement’s tax liability. In fact, all of this information was false and Girardi had embezzled their settlement money, the indictment alleges.

In a separate matter, on January 19, Kamon was charged via information with wire fraud for allegedly embezzling funds in Girardi Keese’s custody and control and using them for his personal expenses, including for renovations on Kamon’s personal residences in Palos Verdes and Encino, travel, shopping and escort services. Trial in that matter is scheduled for March 14.