Significant Pending Cases
Horvitz & Levy LLP is regularly involved in a variety of appeals involving major judgments and/or important public policy issues.
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El-Attar v. Hollywood Presbyterian Medical Center (2011) 198 Cal.App.4th 664, review granted Nov. 30, 2011, S196830.
In this case, the California Supreme Court will decide whether a hospital’s governing board may initiate the formal peer review needed to determine whether a physician is competent to continue practicing in a hospital, by selecting the medical staff physician reviewers and a hearing officer, where the medical staff’s bylaws specify the medical staff as the selecting body but it declines to make that selection.
Dr. El-Attar, a physician with staff privileges to practice at Hollywood Presbyterian Medical Center (Hospital), was accused of providing unnecessary and substandard care. Any unnecessary and substandard care would threaten patient health and the Hospital’s eligibility for Medicare and Medi-Cal funding that was essential to the Hospital’s very existence. The Hospital thus recommended the denial of Dr. El-Attar’s application for readmission to the medical staff. To prevent Dr. El-Attar from treating patients at the Hospital if the charges were accurate, formal peer review of his practice had to be conducted by the Hospital’s medical staff. The medical staff’s bylaws specified that the Medical Executive Committee (MEC) — the medical staff’s leadership — initiate the peer review process by appointing the necessary physician reviewers and a hearing officer.
Instead of appointing the reviewers and hearing officer, the MEC told the Hospital’s governing board to do it. The board responded by appointing 5 physician members of the medical staff and a hearing officer who conducted 30 peer review sessions over a two-year period, examining thousands of exhibits and hospital records and hearing testimony from percipient and 7 expert witnesses. The physician reviewers then concluded that Dr. El-Attar should not be practicing at the Hospital.
The trial court denied Dr. El-Attar’s petition for writ relief, but the Court of Appeal reversed. The appellate court did not find that the peer review conclusions were substantively flawed, but held that the medical staff’s bylaws prohibited the Hospital’s board from initiating the needed peer review even though the medical staff’s MEC didn’t do so.
The Hospital retained Horvitz & Levy LLP to seek review by the California Supreme Court, and to handle further proceedings in the Supreme Court once review was granted. If you would like further information about this case, please contact Horvitz & Levy partners H. Thomas Watson or David S. Ettinger.
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Jankey v. Lee (2010) 181 Cal.App.4th 1173, review granted May 12, 2010, S180890.
In this case, the California Supreme Court will decide whether an award of attorney fees to a prevailing defendant under the California Disabled Persons Act (Civ. Code, § 54 et seq.) (CDPA) is inconsistent with, and therefore preempted by, the federal Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA).
A disabled person and a nonprofit organization brought an action against the owner of a small grocery/liquor store alleging that architectural barriers prevented full and equal access to the store in violation of the CDPA and the ADA. After granting summary judgment in favor of defendant, the trial court awarded defendant mandatory attorney fees under Civil Code section 55 (section 55), which provides that a prevailing party in an action to enjoin a violation of disability access requirements “shall be entitled to recover reasonable attorney fees.”
On appeal, plaintiffs challenged the fee award based on the Ninth Circuit’s decision in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742, which held that a fee award to a prevailing defendant under section 55 without a finding that the plaintiff's lawsuit was frivolous, unreasonable, or groundless, was inconsistent with, and therefore preempted by, the ADA, which authorizes such fees only on frivolous claims. The California Court of Appeal disagreed with the Ninth Circuit’s preemption analysis and affirmed the mandatory fee award.
The defendant has retained Horvitz & Levy LLP to assist with preparation of the briefs on the merits and argument before the California Supreme Court. If you would like further information about this case, please contact Horvitz & Levy partner David Axelrad.
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Zhang v. Superior Court (2009) 178 Cal.App.4th 1081, review granted Feb. 10, 2010, S178542.
In this case, the California Supreme Court will decide whether an insured may maintain a cause of action against its insurer under the Unfair Competition Law (Bus. & Prof. Code, § 17200) (UCL) based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims. The court will also consider whether Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 bars such a cause of action.
The insured brought an action against her insurer for breach of contract, breach of implied covenant of good faith, and violation of the UCL based on the insurer’s handling of a claim arising from a fire at the insured’s commercial premises. The superior court sustained the insurer’s demurrer to the UCL claim without leave to amend. The insured filed a petition for writ of mandate challenging the ruling on demurrer. The Court of Appeal granted the petition and directed the superior court to reinstate the UCL claim. The Court of Appeal reasoned that because the insured’s complaint alleged fraudulent misrepresentations and misleading advertising concerning the insurer’s intention to pay covered claims, conduct that is proscribed by both the Unfair Insurance Practices Act (Ins. Code, § 790.03) and the UCL, Moradi-Shalal did not bar the insured from maintaining the claim.
Real Party in Interest California Capital Insurance Co. retained Horvitz & Levy LLP to consult on its petition for review and then to prepare the briefs on the merits in the Supreme Court. If you would like further information about this case, please contact Horvitz & Levy partners Peter Abrahams or Mitchell C. Tilner.