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HOW TO GET COMPANY CAR ACCIDENT REPORTS?

July 25th, 2018

Company car accident reports can be essential to changing the way a case turns out. An accident report has the power to change what may have been heading straight to litigation, to a settlement agreement in just a matter of days. Why? Well the answer is simple, the information provided in accident reports is a potential gold mind: i.e. party admissions from the defendant. However, getting the accident report is not so simple.

It is clear as to why a company would want to keep their accident report secret, and if they are keeping it a secret, usually there is something YOU should know in the report. So, in order to elevate yourself from simply being a good attorney to being a great attorney, get that accident report.

Step 1: Figure out if an accident report exists:

To figure out if an accident report exists, the easiest way to do this is to ask for it in the very first request for production. Be aware, the language used in this request must be specific in order to avoid the boilerplate objections of “overbroad, vague and ambiguous.” For example, “Any and all accident investigation or incident reports for the SUBJECT INCIDENT,” is likely a sufficient request. However, knowing company attorney’s, the accident report is still likely to remain in their possession because the company will claim that the document flows from the work product doctrine or is privileged. Being a great attorney is foreseeing such a consequence as this. As such, your last request for production should demand a privilege log in the event that the opposing counsel withholds any documents or other information based on a claim of privilege, work-product, or otherwise.

In the alternative, you can ask for a request for production of documents with a notice of a deposition of the defendant employee and the defendant’s person most qualified. If you do this, it is important to ask, “Any and all accident investigation or incident reports for the SUBJECT INCIDENT and the purpose(s) of those reports.” Remember to meet and confer and subsequently file a motion to compel if opposing counsel persists on not providing the documents. The request for the purpose of those reports will be useful in creating an argument against work product and privilege in order to get the documents you need released.

Step 2: If an accident report does exist, must the defendant produce it?

As with most things in the law, the answer is that it depends. If it is under the work-product doctrine, the document itself must “reflect” an attorney’s impressions, conclusions, research, etc. Usually, an accident report is reported by a supervisor or an employee. These people are non-lawyers and thus necessarily do not fall under the work product doctrine. This is something that is essential to discover to assist in a motion to compel.

Secondly, California follows the “Dominate Purpose” test to determine if a document is privileged. This is specifically discussed in D.I. Chadbourne, Inc. v. Superior Ct., (1964) 60 Cal.2d 723. If the dominate purpose of the document is not necessarily for litigation, then it does not likely fall under privilege. For example, it the main purpose of the document is to prevent an accident from happening again, its dominate purpose is not likely for litigation but for safety. Furthermore, if a company uses an accident report every single time there is an accident, it is likely as a safety precaution rather than litigation purpose. However, a document may have multiple purposes. If that is the case, your job is to get testimony and argue that the dominate purpose of these documents is not for litigation, but rather for some other purpose. Find that purpose!

Step 3: Get the Testimony to Help You in Your Motion to Compel.

This can be trying, but with skill and technique you will likely get what you are looking for out of the defendant employee of the person most qualified. There are a number of different ways to do this. I suggest always starting with the first route I will provide here, and the second and third steps can differ depending on your case.

First, confirm with the witness you are deposing that an accident report actually exists. Then, ask whether they reviewed the report to prepare for their deposition. Next, ask if reviewing the report refreshed their memory. If they answer yes to these three questions, Evidence Code section 771(a) is enacted which provides in part, “if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party.” After this testimony, meet and confer and ask if the document will be produced in light of the testimony. Make sure to specifically cite to this Evidence Code. Likely the answer will be no, but they will have no legal basis for their argument.

If a document exists, but the answer to the latter two questions aforementioned is no, then it is important that you get testimony that debunks the argument that the accident report falls under the work product doctrine or is privileged. To do this, it is important to first lead the witness into the questioning to ensure that their mind is in the right place to get the answers you are looking for. For example, beginning a conversation on the importance and practice of safety in the workplace will likely get the witness on the track to thinking that the dominate purpose of the document is to protect safety. Thus, when you later ask what they believe the “dominate purpose” of the accident report is, they will likely provide you with the answers you desire.

Once you have lead the witness into your questioning, start with who prepared the document. It is easy to discern and debunk the work-product doctrine, especially if no attorney prepared it. Next, move into the dominate purpose. Ask questions such as: “does your company always fill out accident reports?; do they look after safety?; how do they train you on safety?” The more you can find a main purpose for the report rather than litigation; the easier your job will be when filing a motion to compel.

After you get the information you need, meet and confer in light of new evidence, then write your motion to compel.

When your motion to compel is granted, your whole case can change. The accident report can change what would have been a trial to a settlement much higher than expected. It is your job to be zealous, competent, and diligent for your client. As such, staying up to date on tricks like the one discussed in this blog will provide you with an advantage and a means to fulfill your duties.

For a more detailed analysis on this issue See:

Andrew Owen, The advocate Magazine 24-31, (April 2018).

ORANGE COUNTY SUPERIOR COURT SETS ASIDE A 16 YEAR JUDGMENT

July 18th, 2018

By Omid Rejali

Recently I had the pleasure of representing a client who had been dropped by his former attorney. The issue evolved around a judgment that was obtained against him back in 2002. The main reason that no one wanted to take on this clients case was because he was a felon. That issue did not worry me one bit because I believed what the client was telling me and it was irrelevant to the issues at hand.

I initially attempted to resolve the matter informally with the attorney who had obtained the judgment against my client. He laughed at me and mocked my client by calling him a felon. That did not sit well with me.

The main issue evolved around a proof of service that alleged that my client had been "personally" served. All proof of service documents are signed under penalty of perjury by the process servers. To prove our case we sent subpoenas to both the Santa Ana county jail and also the California Department of Rehabilitation.

On the hearing date incontrovertible evidence through the testimony of the custodian of records proved that my client had been incarcerated and for that reason it was impossible that he was "personally" served at the address the plaintiff was claiming he was served.

As a result of the judgment based on two bank levies the clients account had been withdrawn approximately $9,000. He had attempted to get answers by contacting the attorney but he would not respond to him at all.

Couple of companies and individuals are going to have some explaining to do!

EQUAL AND MEANINGFUL: A LOOK AT JAMESON V. DESTA

July 12th, 2018

EQUAL AND MEANINGFUL

By: S.J. Walker

It has long been established that one of the main goals of the legal system is to provide equal access to the judicial process. It is clear that “equal access” is continuing to be defined and challenged on a constant basis as we thrive to ensure “equal access” is also “meaningful access.”

In the recent California Supreme Court decision in Jameson v. Desta, the Court found that San Diego County’s policy on court reporters was invalid because it did not provide an exception for indigent people. In Jameson v. Desta, the Court of Appeals affirmed the decision of the trial court for a nonsuit in favor of Defendant. Plaintiff, an indigent, who satisfied the requirements to have his court fees waived, was denied equal access to the judicial process when he was not provided a court reporter when he requested one during the trial stage of the proceedings. As a result, there existed no verbatim record of the trial court proceedings, and the Court of Appeals affirmed the decision of the trial court because they could not determine the case on the merits due to the lack of the record. The California Supreme Court granted review.

The San Diego policy at issue states: Parties, including those with fee waivers, are responsible for all fees and costs related to court reporter services arranged under the foregoing provisions." (S.D. Reporter Availability Policy, supra,at p. 1, italics added, boldface omitted.).”

Here is where a serious problem lies because an indigent person (usually those who qualify for fee waivers) will lack the financial means to hire a court reporter. As such, no verbatim record of the trial court will be made. When no verbatim record is made, the functionality of the appellate level diminishes, and thus limits equal access to the judicial process for indigent people. People with the financial means to hire a court reporter would still be able to receive a verbatim record, and thus appeal with efficiency. This is not equal access.

The California Supreme Court noticed this issue. Chief Justice Tani G. Cantil-Sakauye wrote: “[W]hen a superior court adopts a general policy under which official court reporters are not made available in civil cases but parties who can afford to pay for a private court reporter are permitted to do so,” such as what San Diego did, “the superior court must include in its policy an exception for fee waiver recipients that assures such litigants the availability of a verbatim record of the trial court proceedings, which under current statutes would require the presence of an official court reporter.”

This decision invalidated the San Diego policy. Now there must be an exception, allowing for court reporters to be provided by the courts to indigent people in civil cases. This decision follows a number of California Supreme Court decisions that attempt to override statutory provisions to allow equal access to the courts for indigent people. The courts are constantly trying to determine that equal access is meaningful access, and I believe that providing a court reporter to someone who has already had their fees waived is a step closer to achieving this goal.

Let Jameson v. Desta serve as a reminder that equal access need be meaningful access as well. When equal access is not meaningful, it is in essence, not equal. Step back, reflect, and respond. Are the occurrences in your case equal and meaningful?

This case comes from Jameson v. Desta, 2018 S.O.S. 3377.

PEBLEY V. SANTA CLARA ORGANICS

May 9th, 2018

The California Court of Appeal held today that a Plaintiff is allowed to treat with doctors on liens, even if he/she was insured at the time of the accident.

This is an extremely important ruling for plaintiffs because it allows them to recover the full amount of money that they owe to their doctors when they treat on liens and solidifies their due process right to choose their own medical treatment.

The court of appeal reasoned that there could be many reasons why a plaintiff may choose to treat on a lien basis (this is when doctors choose to treat a plaintiff without getting paid, and would subsequently get paid after the plaintiffs case is over), for example because "plaintiffs generally make their health insurance choices before they are injured. These choices may be based on the plaintiffs' willingness to bear the risk posed by a health maintenance organization (HMO) rationing system because the plaintiff is healthy and requires little care. This decision may appear much different after a serious accident, when the plaintiff suddenly needs complex, extensive care that an HMO is not structured to provide." The court when on to say: "The plaintiff also may wish to choose a physician or surgeon who specializes in treating the specific type of injury involved, but who does not accept the plaintiff's insurance or any other type of insurance. In addition, health care providers that bill through insurance, rather than on a lien basis, may be less willing to participate in the litigation process."

This is a major victory for personal injury victims because it will allow them to introduce all of their medical bills at the time of trial so they could get compensated for them, without the fear that the court may grant a defendants motion to exclude the "unpaid" bills.

If you have been severely injured by someone else's wrong doing contact us for your free case evaluation. We will take any case to trial if that is what is required to fully compensate you for your injuries.

REJALI LAW FIRM FILES SUIT AGAINST MCDONALD'S FOR HOT COFFEE

April 4th, 2018

On March 20, 2018 we filed suit against McDonald's in San Diego Superior Court for Negligence; Products Liability; and breach of implied warranty stemming from allegations that our client suffered from second degree burns, when the coffee that was handed to her was not securely fastened and poured onto her lap.

The parties are expected to make their first appearance on December 14, 2018.

The court case number is: 37-2018-00014613-CU-PL-CTL.

AM I GETTING THE FULL VALUE OF WHAT MY INJURY CLAIM IS WORTH?

January 23rd, 2018

By Omid Rejali, Esq.

If you have been involved in a car accident, bicycle accident, truck accident or have been injured as a result of someone else's careless behavior, the law allows you to be compensated for all of your past and future medical care, all of your past and future loss of earning and for pain and suffering.

In my practice I see it everyday where the insurance companies do not want to pay for the entire loss that my clients have suffered.

To answer the question of whether or not you are receiving the full value of your injury claim we need to look at several factors. First, the insurance company for the party who caused your loss is responsible to pay all of your past medical expenses. These past medical expenses are not and should not be limited only to what your copay is, but the actual amount that your insurance company paid for your visit. For example, if you went to the doctor and your copay was $15 dollars, and your doctor billed the insurance and received another $150, you would be entitled to the full $165 dollars. The reason for this is that, even though you do have insurance, when a third party causes your loss they are going to be responsible for all of the payments, not just your out of pocket costs. Often times, I have heard when insurance companies try to contact our clients immediately after the collision to try and get them early on and settle their claim for pennies on the dollar.

So, for starters you want to make sure they are paying for everything that you have incurred. The same goes for your lost wages.

In addition, to your past medical bills, the responsible party would also be responsible for all future medical costs that are reasonably certain to be needed and that are also related to the accident. For example, if your orthopedic doctor is recommending that you may need to get surgery on a herniated disk that you developed as a result of the accident that you were involved in, the insurance company is responsible to pay for all of that as well.

Almost all insurance companies do not want to pay for future medical care, and most of them even will dispute the medical treatment and care that you have received so far.

You should never attempt to negotiate with insurance companies on your own. They are ruthless and all they care about is money.

If you have been injured contact us for your free case evaluation. I will personally vouch that we will get you the full value for your injury claim, even if it means taking them to trial.

THE INSURANCE COMPANY FOR THE PARTY THAT CAUSED THE COLLISION IS DENYING MY CLAIM CAN I STILL BE COMPENSATED?

January 20th, 2018

Most of the times the answer is yes.

I say most of the times because in our experience most of the times the insurance companies deny many claims that should have not be denied in the first place. The reason? Money. The insurance companies are in the business of increasing profitability for their shareholders. They don't care about anything else.

For that reason, if there is a slight chance that they can get away from not paying a claimant they will. We have handled many claims that the insurance companies have wrongfully denied in the beginning, however, later decided to change their mind and pay.

In our experience most of the times, the insurance companies base their evaluation and denial of such claims on a police report. There are many problems with relying on a police report in making an assessment of fault. For one the police were likely never there when the collision happened. Second, the report is on the basis of statements that the driver of the other vehicle has made. This can make the officers assessment faulty. There also may be other vehicle codes that the police may have not considered that in fact may put the party responsible instead of you.

For these reasons it's important to contact a car accident lawyer who is familiar with these types of situations to make sure you are not wrongfully denied a claim.

We take on many tough cases and would be happy to evaluate your claim.

Contact us or text us 24/7 at 619-485-6313 for a free case evaluation and speak with an experienced injury lawyer in San Diego today.

HOW TO MAXIMIZE YOUR PERSONAL INJURY AWARD?

January 16th, 2018

We are always asked how can I maximize my San Diego personal injury award?

If you have been injured, generally you are dealing with an insurance adjuster. The unfortunate truth is that insurance adjusters do not look at us as humans. For them, we are all just a number, and they have a system by which they input all of the data including medical treatment, and loss wages and it assigns a value to the case.

Below are several factors that you could use to maximize your injury award:

  • Do not allow gaps in your treatment

    . This is because any gap in treatment is read as no pain and therefore no treatment. Of course, what is not considered are other reasons why the person may not have been seeking treatment such as: work schedule, the doctor not having an appointment, or simply not liking to go to the doctor and putting it off until it really becomes a necessity. Seriously how many of us love to going to the doctor?!

  • Make sure to describe all of your symptoms accurately to your doctor. 

  • Make sure that your doctor accurately reflects all of your symptoms in his notes. 

  • Discuss all of your options with your doctor (i.e. pain management; physical therapy; surgery).

  • Do not exaggerate any of your symptoms.

  • Do ask your doctor for a specialist if you are not getting better. 

  • Document the way you feel each and every day. 

    This will allow you and your attorney to determine how the injury has affected your life. There is a category of damages that are called non-economic damages, which we like to call "human damages."  These damages could include feelings of: pain, sadness, anxiety, embarrassment, shame, fear, and anger.

     

     

  • Make sure you report everything to your attorney so he/she is up to date on all of your medical treatment. 

  • Always tell the truth. 

    This cannot be stressed enough. 

  • If there is any bruising or scarring make sure you take a picture of it

    . There is nothing more convincing than photographs.

  • Do not under any circumstance give a statement to the insurance adjusters. 

    This is almost the same as not speaking to the police because everything you tell them is going to be used against you.  

  • If you have had a previous injury related to your current injury make sure you describe that to your doctor. 

    Insurance companies love to use this one against you, but under the law if the injury has gotten worse

The injuring party would still be responsible for the entire injury. Its just like when your windshield was cracked but you were still driving your car for 5 years with no problems and now it becomes completely shattered. Who should pay for it? The person who made it worse. 

Insurance adjusters forget that we are humans that have been injured through no fault of our own. Following these steps could help in maximizing your personal injury award. Insurance companies and their agents are in the business of making money by hedging risks. For this reason, the less money they pay, the more money they make. Unfortunately, they do not look at us like humans. At Rejali Law Firm we pride ourselves in taking only a few cases at a time, this approach allows us to know each of our clients on an individual human level, so we can effectively demonstrate whether to an insurance adjuster, a mediator, or a jury how our clients life has been affected by the injuries they have sustained.

As Gerry Spence, America's best trial lawyer says: "This world will be a better place when the power of love overcomes the love of power." We strive to bring the power of love to each of our clients and to the courtroom each and every time.

If you have any questions about your claim contact us or text us 24/7 at (619)-485-6313.

IS REGENTS OF THE UNIVERSITY OF CALIFORNIA CONSIDERED A "BUSINESS ESTABLISHMENT" UNDER THE UNRUH CIVIL RIGHTS ACT?

January 12th, 2018

In our most recent litigation one of the mostly contested and litigated issues was whether the Regents of the University of California ("Regents") is considered a "business establishment" under California's Unruh Civil Rights Act ("Act")?

Since there is no direct case law on the issue, Regents tends to frequently make the argument that it is not and should not be considered a "business establishment" under the Unruh Civil Rights Act. Although the case that we have been litigating is not final, and no direct case law has been established yet that specifically addresses the issue, a San Diego Superior Court Judge denied the Regents' multiple attempts at arguing that it should not be held liable because it is not a "business establishment."

This is an extremely important holding because it exposes Regents to potential statutory damage awards each time they violate the Act. If you are an attorney or a victim of the Regents' violative acts make sure you get in contact with us.

UCSD ON TRIAL FOR VIOLATING STUDENT'S RIGHTS

August 25th, 2017

We cannot be any happier today for our client, and to have the pleasure of representing him against one of the biggest Universities in the country. We look forward to the trial on this case, which is currently set to begin on September 29, 2017. This morning San Diego Superior Court ruled that our client’s case against Regents of The University of California, San Diego, would be heard by a jury. One step closer to justice for our client against the Universities disgraceful attack on his disabilities. The name of the case is Jazirian v. Regents of the University of California San Diego. SDSC Case#: 2016-00007684.

Rejali Law Firm

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