IF YOU ARE A MANDATED REPORTER, READ THIS!

I have a client who was the subject of a child abuse allegation, by her own sons.  Since her divorce, she had sole legal and physical custody of the children.  They were put up to it by their father, her ex-husband.  Over the years, the father tried to gain custody and visitation rights, but was never successful, based on his prior conduct and criminal history.

Once the boys were older (13 and 16), my client let her Ex, who was down on his luck, into the house to watch the boys while she worked the late shift as a prison guard.  The Ex was supposed to make sure the boys did their homework and chores.  Of course he didn't, just to upset my client.  [Note:  It never helps for one parent to have to be the "bad cop" while the other plays the "good cop" to gain favor.  The Ex played this game very well.]  Rather than telling the boys they should respect their mother's wishes and do their homework and chores, he told them they should report her so she could get help for being upset with them all the time.  His plan was to manipulate the boys to try to gain custody, assuming CWS determined abuse had taken place. The father took the sons to a public school, here in San Diego County, where they met with a school counselor.

A school counselor is one of those designated mandated reporters under CANRA, the Child Abuse Neglect and Reporting Act, which consists of California Penal Code, Sections 11164 through 11174.3.  Whenever there is a reasonable suspicion of child abuse, CANRA mandates that the mandatory reporter prepare a Suspected Child Abuse Report, aka a SCAR, and transmit the form to one of the designated investigating agencies.  CANRA also requires that the SCAR remain confidential and can only be transmitted to one of the designated agencies.  CANRA makes it a criminal offense, subject to jail and a fine for a mandated reporter to disclose the report to anyone other than the designated investigative agencies.

It should be obvious what kind of mischief and damage can occur if a SCAR were to be publicly disclosed before a proper investigation of the abuse allegations occurred, particularly if the subject of the report didn't abuse anyone.  It is not uncommon for ex-spouses to manipulate child into making false allegations of abuse during custody disputes.

You can probably guess what happened next.  The school counselor gave a copy of the SCAR to the Ex who no longer had to wait to see if CWS determined abuse had taken place.  He could now bypass "the System" with all its safeguards and confidentiality, and immediately drove to the Family Court with the boys to file paperwork to gain custody and attached a copy of the confidential SCAR as an exhibit!  Much legal mayhem occurred in the aftermath of that and my client incurred legal fees and other expenses, emotional distress, and physical illness from the stress of the events following the disclosure.  Her Ex showed copies of the SCAR to friends and family, many of whom shunned her.  Ultimately, the allegations were deemed unfounded and she maintained sole legal and physical custody of the boys, but the fight took its toll on her and much damage was done to her good name.

She filed a tort claim with the school district, which was rejected the day after it was filed.  We filed suit against the school counselor and the school district.  Eventually, the school district and the counselor filed a Motion For Summary Judgment arguing that the counselor had governmental immunity for disclosing the SCAR and breaching the mandatory confidentiality of CANRA.  The trial judge agreed and entered judgment against my client.  They then went after her for about $25000 in costs defending the case.  I filed an appeal arguing that there was no immunity.  After all, since when does anyone have immunity for committing a crime?  The school counselor violated the Penal Code by making an unauthorized disclosure.

Almost 1 1/2 years after filing the appeal, with the briefing by both sides completed in February, on October 18, 2013 we had oral argument in the 4th District Court of Appeals, Division One, downtown San Diego.  I left the hearing feeling very confident.  On November 18, 2013, only 2 days ago, the ruling came down.  REVERSED!  In a slam dunk, the Appeals Court ruled that there was no immunity for violating the mandatory confidentiality required in CANRA, especially because such a violation is subject to criminal sanctions, including jail and a fine.  The ruling becomes final 30 days after the decision and the defendants have 10 days after that to file an appeal with the State Supreme Court, but the odds of having the Supreme Court take the case are maybe 5%.  This was a case of "first impression" and no other appellate court had ever ruled on the question of immunity under these circumstances.  Ultimately, this decision with benefit potential victims of child abuse, because it further strengthens the language contained in CANRA making reporting AND confidentiality clear and enforceable.

So... if you are a mandated reporter, please take the mandatory confidentiality seriously.  There is no immunity for violating that and you could be subjected to imprisonment and a fine for doing so, not to mention a lawsuit for damages... substantial damages.  A copy of the decision can be found at:

Cuff v. Grossmont Union High Sch. Dist. 

Veterinary Malpractice Statute Of Limitations In California

I had a call today from someone who brought a suit in Small Claims court for veterinary malpractice.  I was told that the insurance company for the veterinarian asserted a Statute of Limitations defense saying that the veterinarian is covered by the same one-year Statute of Limitations as a medical doctor under Code of Civil Procedure 340.5.  Technically, that is incorrect.  However, out of curiosity, I did some research and found that such malpractice is covered under a different code section. CCP 340(c) states within one year:

"An action for libel, slander, false imprisonment, seduction of a person below the age of legal consent, or by a depositor against a bank for the payment of a forged or raised check, or a check that bears a forged or unauthorized endorsement, or against any person who boards or feeds an animal or fowl or who engages in the practice of veterinary medicine as defined in Section 4826 of the Business and Professions Code, for that person's neglect resulting in injury or death to an animal or fowl in the course of boarding or feeding the

animal or fowl or in the course of the practice of veterinary medicine on that animal or fowl."

Thus, there is a one-year length of time from the date of injury to either settle the claim or file suit.  Unlike malpractice on human beings, Code of Civil Procedure 364 which extends the Statute of Limitations 90 days after serving a Notice of Intent to sue, does not apply to animals because they are considered property, at least according to one Court of Appeal opinion.

Bottom line:

If you are going to sue a veterinarian for malpractice, sue within one year.

Caregivers Assume The Risk of Injury Caused By Alzheimer's Patient

In a case entitled Gregory v. Cott, et al., the California Court of Appeal, Second Appellate District, Division 5, the Court ruled that a hired caregiver, specifically retained to care for an Alzheimer's patient, assumes the risk of being injured by that patient, and cannot sue for damages.

Defendant Bernard Cott contracted with a home care agency to provide the services of an in-home caregiver to care for his wife, defendant Lorraine Cott who suffered from Alzheimer‘s disease.  Lorraine injured the caregiver, plaintiff Carolyn Gregory, who thereupon sued Lorraine for battery and Lorraine and Bernard for
negligence and premises liability.  The Court held that defendants are entitled to summary judgment in their favor on the ground of primary assumption of risk.

The court concluded: Accordingly, we conclude that the trial court properly determined that each of plaintiff‘s causes of actions against Lorraine and Bernard is barred by the doctrine of primary assumption of risk.  Having been a caretaker for Lorraine for several years, plaintiff could not have been under any illusions concerning Lorraine‘s condition or the premises.  The primary assumption of risk doctrine is a defense as to Bernard, as well as to Lorraine.  As noted, that doctrine applies to both negligence and intentional torts.

You can read the entire opinion at the link below:

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=2&doc_id=1999114&doc_no=B237645

Of course, the nurse would have a workers compensation claim, but the amount she would receive under that coverage would be significantly less, limited by statute, but the Court certainly has eliminated the possibility of a third party tort claim under such circumstances.  Clearly, taking care of an Alzheimer's patient can be difficult and dangerous.  People who take on that kind of caregiver role deserve our thanks.

When Is Homeowners Insurance Illusory?

In a California Court of Appeals decision, entitled Reichert v. State Farm General Insurance Company, the Fourth District court ruled that a homeowners’ insurer (State Farm) had no duty to indemnify where insureds attempted a remodel of their newly purchased house, but the building inspectors discovered, prior to completion, that the project did not conform to local floodplain regulations and ordered the property demolished. Coverage was clearly excluded under a provision in their policy saying there was no coverage for loss caused by the enforcement of any law or ordinance.

The facts:

Eric and Lizbeth Reichert attempted a remodel of their newly-purchased Huntington Beach house.  Before construction was finished, city building inspectors discovered the project did not conform to Huntington Beach floodplain regulations, and ordered the property demolished.  The Reicherts then sued their architect and their contractor, and also made a claim on their homeowners‟ insurance policy on the theory that it should cover for the loss caused by the architect and contractor demolishing some walls that the City did not permit causing a FEMA violation.  Their insurance company denied the claim, asserting the demolition was not an accidental loss, and in any event the loss was excluded by a provision in their policy saying there is no coverage for loss caused by the enforcement of any law or ordinance.

In it's decision, the Court stated bluntly; "The Reicherts sued their insurer, and the case now comes to us after the insurer's successful motion for summary judgment.  We affirm.  This seems, unfortunately for the Reicherts, a rather clear example of the “law or ordinance exclusion.” 

The Court went on to state, in detail, the reasoning for the decision.

A link to the full decision can be found here:

http://www.courts.ca.gov/opinions/documents/G046582.PDF

There is a lesson to be learned here... before purchasing a home, particularly a home that you intend to remodel or expand, do the research to determine if there are any zoning regulations that may affect your plans.  Failure to do so may very well lead to the pathetic consequence that the Reicherts suffered although, I expect, the architect and general contractor undoubtedly paid substantial damages to the Reicherts.

Bumper Car Rider Beware!

On the last day of 2012, December 31st, the California Supreme Court has ruled that amusement parks are not legally responsible for injuries sustained while participating in a bumper car ride.  In a case entitled Nalwa v. Cedar Fair, the high court ruled that "the primary assumption of risk doctrine, though most frequently applied to sports, applies as well to certain other recreational activities including bumper car rides. We further conclude the doctrine applies to the ride here, even though amusement parks are subject to state safety regulations and even though, as to some rides, park owners owe participants the heightened duty of care of a common carrier for reward."

 Essentially, the Court reasoned that bumper car rides carry some inherent risk that is obvious, much the same way that certain sports have an inherent element of risk and that those that participate in such activities, assume the risk.  You can read the full text of the decision at: 

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1986250&doc_no=S195031 .

 I would point out that not all risk is assumed.  If the bumper car were defective and exploded or someone riding in the vehicle were electrocuted due to poor maintenance, the doctrine of primary assumption of the risk would not apply.  But for properly operating and maintained rides, such as the one in this case, it would appear that there will be no liability for foreseeable risks of injury.  Hopefully, in light of this decision reducing liability, amusements parks will pass on the savings and keep prices down.