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Journal of Consumer Attorneys Associations for Southern California

Medical-care issues that can kill your personal-injury case

Don’t let the defense point towards medical malpractice as a shield to defeat your case

Premises Liability

Evaluating liability at the outset of your case The statutory defenses for a dangerous condition of public property The use of experts in the premises-liability case

Litigating slips, trips and falls: Don’t fall on your face Third-party criminal activity and premises liability

Proving your premises case before trial The odyssey of Soule v. General Motors: The untold story Building blocks: Construction defects 101

March 2014


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Contents Volume 41, Number 3, MARCH 2014

Editor-in-Chief Jeffrey Ehrlich Associate Editors Martin Aarons, Joan Kessler, James Kristy, Spencer Lucas, Beverly Pine, Norman Pine, Rahul Ravipudi, Ibiere Seck, Geraldine Weiss, Ronnivashti Whitehead Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Managing Editor Cindy Cantu cindy@caala.org Copy Editor Eileen Goss

Publisher Richard Neubauer rn@theadvocatemagazine.com Art Director David Knopf

Consumer Attorneys Association of Los Angeles President Treasurer Geoffrey Wells Michael Arias President-Elect Secretary Joseph Barrett Shawn McCann First Vice President Immediate Past President David Ring Lisa Maki Second Vice President Executive Director Ricardo Echeverria Stuart Zanville

Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, David deRubertis, Danica Dougherty, Jeffrey Ehrlich, Tobin Ellis, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Jeff Greenman, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Tobin Lanzetta, Tim Loranger, Anthony Luti, Minh Nguyen, Christa Ramey, Rahul Ravipudi, Taylor Rayfield, David Rosen, Jeffrey Rudman, Ibiere Seck, Doug Silverstein, Kathryn Trepinski, Geraldine Weiss, Ronnivashti Whitehead, Andrew Wright Orange County Trial Lawyers Association Secretary President

Casey Johnson

President-Elect Ted Wacker

First Vice President Vincent Howard Second Vice President H. Shaina Colover

Third Vice President Geraldine Ly

B. James Pantone

Treasurer Jonathan Dwork Parliamentarian Jerry Gans Immediate Past President Scott Cooper

Executive Director Janet Thornton

Board of Directors Melinda S. Bell, Anthony W. Burton, Brent W. Caldwell, Darren J. Campbell, Cynthia A. Craig, Robert B. Gibson, T. Gabe Houston, Paul E. Lee, Kevin G. Liebeck, H. Gavin Long, Solange E. Ritchie, Sarah C. Serpa, Adina T. Stern, Douglas B. Vanderpool, Janice M. Vinci, Atticus N. Wegman Periodicals postage paid at Los Angeles, California. Copyright © 2014 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited.

ADVOCATE (ISSN 0199-1876) is published monthly at the subscription rate of $50 for 12 issues per year by the Consumer Attorneys Association of Los Angeles, 800 West Sixth Street, #700, Los Angeles, CA 90017 (213) 487-1212 Fax (213) 487-1224 www.caala.org

POSTMASTER:

Send address changes to ADVOCATE c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine

MARCH 2014

Features:

odyssey of Soule v. General Motors: 14 The The untold story

It has been 20 years since this landmark case in products liability. The author was part of it and now looks back. Douglas A. Scott

criminal activity and premises 28 Third-party liability Foreseeability and safety precautions are keys to liability. Randy H. McMurray and Katherine Hight

should have been a stop sign” 36 “There The tools to defeat defendant’s motions based on statutory defenses for a dangerous condition of public property. Gregory L. Bentley and Steven M. Schuetze

slips, trips and falls: Don’t fall 48 Litigating on your face

If you have a credible client, the elements of liability and have taken steps to preserve the evidence, this can be a rewarding case. Jeffrey Greenman

issues that can kill your personal56 Medical-care injury case Don’t let defendants try to use malpractice as a shield to defeat your case. Steven A. Heimberg

use of experts in the premises liability case 82 The Many premises cases are losers at trial, but the right expert can improve your odds. Robert S. Fink and Brad Avrit

blocks: Construction defects 101 84 Building The complexity, statute-of-limitation issues and high cost may explain why defect cases have become such a specialty. Alan I. Schimmel

Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294 e-mail: advertising@theadvocatemagazine.com Rate card available online at www.theadvocatemagazine.com

Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: editor@theadvocatemagazine.com. Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu: cindy@caala.org

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liability at the outset of your case 88 Evaluating Spend time on the informal but crucial case evaluation before you run off to file a case. Martin I. Aarons

your premises case before trial 90 Proving Evaluating the client and the case: from intake through discovery. Ibiere Seck

Departments:

8 94

A BOUT THIS I SSUE Get to know and applaud the Advocate Associate Editors for 2014 - 2015. Cindy Cantu, Managing Editor Appellate Reports and Cases in Brief St. Mary offers clarity in responding to Requests for Admissions.

102

- New CAALA affiliate vendors can save you money.

103

Jeffrey Isaac Ehrlich

98

P HOTO E SSAY 2014 CAALA Gala & Installation Dinner Photos by Snap Yourself!

100

F ROM

THE

CAALA C ONNECTION C ENTER CAALA offers four attorneymember-only List Serves to connect with other members Welcoming the newest members to CAALA.

104

G OVERNMENT R EL ATIONS B ULLETIN Political Updates from Sacramento and Washington

106 108

D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS

E XECUTIVE D IRECTOR

Consumer Attorneys Association of Los Angeles

Play ball! The connection between CAALA and our National Pastime Start of a new season.

Stuart Zanville

101

CAALA R ESOURCE C ENTER CAALA’s multi-function downtown conference center available for rent

F ROM

THE

P RESIDENT

Consumer Attorneys Association of Los Angeles

I believe heroes exist

High hopes

Never give up on yourself and the cause you are fighting for each day − simple civil justice for your clients.

OC Justice: Access and accountability.

Geoffrey Wells

F ROM

THE

P RESIDENT

Orange County Trial Lawyers Association

Casey Johnson On the cover: Main Image: Businessman Trips and Spills Coffee | James Woodson | www.thinkstockphotos.com Inset: Lawyer Gesturing | feedough | www.thinkstockphotos.com Portrait of a Doctor | Poike | www.thinkstockphotos.com

MARCH 2014

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Cindy Cantu

Managing Editor

Get to know and applaud the Advocate associate editors Check our editorial calendar for your opportunity to contribute your expertise to Advocate The Advocate Editorial Board is made up of our Editor-in-Chief Jeff Ehrlich and our associate editors. They are an amazing group of volunteers who spend countless months, weeks and hours putting together each Advocate issue you read. They are: Jeffrey Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. His practice focuses on providing appellate support for the Ehrlich plaintiffs’ trial bar. Ehrlich is certified by the State Bar of California as an appellate specialist, and he has argued appeals before the U.S. Supreme Court, more than half of the U.S. Circuit Courts, the California Supreme Court, and every appellate court in California. In all, he has briefed and argued well over 200 appeals, and has 67 published appellate opinions. As of 2014, Ehrlich is a co-author of Croskey, Heeseman, Imre & Ehrlich, Insurance Litigation (Rutter 2014). Ehrlich is a two-time winner of CAALA’s “Appellate Lawyer of the Year” award, and is a member of the CAALA Board of Governors. He has been the Editor-inChief of CAALA’s Advocate magazine since 2006. Martin Aarons is the principal in The Aarons Law Firm, APC, located in Sherman Oaks where his practice focuses on representing employees in employment matters, including discrimination, harassment, and 8 — The Advocate Magazine

MARCH 2014

retaliation cases. Aarons received his J.D. at the University of San Diego School of Law, and his B.A. at Arizona State University. Aarons

Joan Kessler, a full-time mediator and arbitrator at ADR Services, Inc., received her Ph.D. in Communication before she attended law school. She was a jury consultant and taught Communications and has practiced law for over 25 years. Many of the communication strategies she taught and her extensive experience as a litigaKessler tor enhance her mediation and arbitration practice. She specializes in employment, real estate, trust/ estate, business, commercial, entertainment, and insurance cases. Kessler is also on the American Arbitration Association panel of arbitrators. James Kristy is the principal trial attorney at The Kristy Law Firm, in Seal Beach, California. Since 2003, he has successfully represented consumers and small businesses. The Kristy Kristy Law Firm’s mission is to hold corporations – including insurers, HMOs, and employers – responsible for their harmful acts. His expertise encompasses insurance bad faith, including medical, liability, and homeowner insurance; wrongful death; employment; homeowners associations

(Davis-Stirling Act); and construction defect, among other practice areas. Kristy has served as a member of CAALA’s Board of Governors since 2005. Spencer Lucas is a trial lawyer at Panish Shea & Boyle and specializes in trying complex catastrophic personal injury, products liability and wrongful death cases. He has extenLucas sive experience in cases involving traumatic brain injuries, spinal cord injuries, and chronic pain. Beverly Tillett Pine is a partner in the AV-rated firm, Pine & Pine, in Sherman Oaks, California, and focuses her practice exclusively on civil appellate law. She has spoken Pine on appellate and/or employment law issues and is co-editor (along with Norman Pine) of the annual Employment Law issue of Advocate. She is the 2012 recipient of the Ian Herzog Award given by CAALA to the Appellate Lawyer of the Year. Norman Pine is a partner in the AV-rated firm, Pine & Pine, in Sherman Oaks, California. He is a Certified Appellate Law Specialist (SBLS), handling appeals for plaintiffs throughout California. Honors include: CAALA’s

Pine

About this Issue continues


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About this Issue — continued

“Appellate Attorney of the Year” (2003); CELA’s highest honor, the “Joe Posner Award” (2008); A-V rating; and the Los Angeles Daily Journal’s “Top Employment Lawyers” in California (2009, 2011-2012). Rahul Ravipudi is an attorney at Panish, Shea & Boyle where he focuses on wrongful death, catastrophic injury, employment and consumer class action matters. Ravipudi is also an adjunct profesRavipudi sor at his alma mater, Loyola Law School, where he teaches trial advocacy. Ibiere Seck is a senior associate at The Cochran Firm, Los Angeles, where her practice focuses primarily on major negligence and product liability litigation and trial. She joined the firm in 2008 and is a graduate of Loyola Law School. She is a member of CAALA’s and

CAOC’s Board of Governors and serves as the Chair of the CAALA New Lawyers Committee. In 2010, Ibiere was selected as one of Southern California Super Lawyers Seck Rising Stars, and is the 2013 recipient of CAALA’s Rising Star Award. Geraldine Weiss is an associate at the Law Offices of Michael J. Piuze, Los Angeles, which specializes in major plaintiff personal injury cases. She has obtained many Weiss multi-million dollar settlements/verdicts for her clients and has been involved in several record-breaking verdicts ranging in topics from civil rights violations to tobacco litigation. She was educated in England and obtained her undergraduate degree

from the University of Cardiff in Wales. After moving to the States, she received her J.D. from Whittier Law School. Geraldine currently serves on the CAALA Board of Governors. Ronnivashti Whitehead is a solo practitioner in the Los Angeles area at the Law Office of Ronnivashti Whitehead. She is a graduate of Chicago-Kent College of Law, the law Whitehead school of the Illinois Institute of Technology. Ms. Whitehead was admitted to practice law in Illinois in 2003 and admitted to practice law in California in 2006. She represents plaintiffs in such areas as personal injury, employment law, civil rights, and family law matters. Ms. Whitehead has served on the CAALA Board of Governors since 2009.

Below is the 2014-2015 Advocate Editorial Calendar. Article contributors are encouraged to submit articles directly to the associate editor of the issue where your topic would be most appropriate. Please review the Advocate Article Submission Guidelines

2014 - 2015 ADVOCATE EDITORIAL CALENDAR ISSUE March 2014 April 2014 May 2014 June 2014 July 2014 August 2014 September 2014 October 2014 November 2014 December 2014

THEME Premises Liability Damages & Experts Vehicular Negligence Cases Employment & Labor Law Perspectives from the Bench Insurance: Coverage & Bad Faith Alternative Dispute Resolution Discovery & Evidence Professional Liability:Medical, legal, brokers & others Law & Motion and Appeals

ASSOCIATE EDITOR COPY DEADLINE Cindy Cantu cindy@caala.org January 6 Spencer Lucas lucas@psblaw.com February 3 Geraldine Weiss dweiss@mjplaw.net March 3 Norman & Beverly Pine npine@ssmlaw.com April 1 Martin Aarons maarons@aaronslawfirm.com May 1 Jeffrey Ehrlich jehrlich@ehrlichfirm.com June 2 Joan Kessler jkessler@kesslerandkessler.com July 1 Ronni Whitehead ronniwhitehead@yahoo.com August 1 James Kristy james@kristylaw.com September 2 Jeffrey Ehrlich jehrlich@ehrlichfirm.com October 1

2015 January 2015 February 2015

Trial & Jury Selection Class Actions & Complex Cases

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Ibiere Seckiseck@cochranfirm.com Rahul Ravipudiravipudi@psblaw.com

November 3 December 1


E 6 3 3 1 1 2 1 1 2 1

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Douglas A. Scott

The odyssey of Soule v. General Motors: The untold story It has been 20 years since this landmark case in products liability. The author was part of it and now looks back The case

It was 1982. I had been practicing law since 1973 as a general practitioner with a modest emphasis on personalinjury plaintiff work. My office was in Claremont, California. A law-school classmate of mine, Ned Reilly, had formed a plaintiff ’s law firm in Orange County with his USC classmates and fraternity brothers, Jay Horton and Frank Barbaro. The firm was known as Horton, Barbaro & Reilly. Tragedy struck the firm around 1982 when a terrible fire gutted the firm’s office building on Main Street in Santa Ana and caused the death of senior associate, Wes Harrison. The fire and water damage caused the firm to move to a warehouse up the street where the files had to be reorganized and literally “blow dried” with hair dryers. The firm placed an ad in the Daily Journal seeking help, and I responded. We struck a deal where I could keep my sole practice in Claremont, feed cases to the firm, and work two to three days a week in Orange County on the firm’s own cases. I was placed in charge of a separate unit of auto/slip-and-fall/general tort cases with my own paralegal. I also was able to work on some of the larger, more complex cases that came to the firm. Teri Soule’s case was one of them. When Teri Soule came into the office, I was struck by her humble spirit and likeable personality. She walked with a cane and had a severe limp due to the horrible injuries she had sustained to her left foot and ankle. She had broken both her ankles in a car crash with the left ankle requiring a quadruple arthrodesis of the foot and ankle. It was the worst foot and ankle injury I have ever seen. The ER doctor had done everything he 14 — The Advocate Magazine

MARCH 2014

From the Author: First, I would like to praise and commend the article authored by Thomas H. Peters “Products Liability Jury Instructions: Blurred Lines” that appeared in the November 2013 issue of the Advocate. The article was informative, well written and inspired me to write this article. Second, I dedicate the writing of this untold story to my longtime friend, mentor and brother in battle, Frank P. Barbaro. Frank was lead trial counsel in Soule v. General Motors (1994) 8 Cal.4th 548, a case that will be familiar to those who litigate products-liability cases in California, and which is also frequently cited about the rules concerning jury instructions. Frank presented the case as well as any trial lawyer I have ever known under difficult circumstances. Frank was, and still is, a master of his craft and to this day I still consider him to be one of the best trial lawyers in America. I had the honor, privilege and good fortune of serving as his senior associate who prepared the case for trial as well as sitting as co-counsel/second chair to Frank. People and friends who know Frank and me still laughingly refer to us as the “Soule Men.”

could to save her foot since there was great concern necrosis would occur and the foot might have to be amputated. Fortunately, the foot was saved, but Teri would never walk again without a cane, nor would she ever again wear a dress or wear high heels. The pain bothered her constantly and significantly, but she bore the physical and emotional agony with grace and dignity. Before the accident, Teri had purchased a 1984 F-Body Chevrolet Camaro.

She worked for a probate referee as his assistant and was delivering papers as part of her job on the day of her accident. She was traveling on Westminster Boulevard in the City of Westminster and there was rain on the road and the road was wet that day. A young man traveling in a small Nissan was approaching in the opposite direction and hydroplaned and lost control of his vehicle and drifted across the road into Teri’s lane of travel. Teri “t-boned” the Nissan’s side with the entire front of her Camaro. Her seat belt was in use (which the GM defense disputed at trial) and Teri had very little memory of what happened. The floorboard/firewall of the Chevy Camaro was significantly crushed and crumbled inward upon impact with the Nissan. Teri suffered some minor neck and back softtissue injuries but her major problems were the feet and ankle injuries.

Preparation/pre trial

Teri had been represented by another law firm before coming to our firm. The Nissan driver had a minimum policy of $15,000 which was tendered and paid soon after Teri’s accident. The City of Westminster was named in the litigation due to possible rainwater pooling or runoff on Westminster Boulevard that may have caused the Nissan to hydroplane or drift into Teri’s lane of travel. A small settlement was negotiated with the City before trial. However, the biggest focus of the case was the “crashworthiness” of the GM/Chevrolet Camaro to prove a defect. No one had stored or preserved the Camaro. My first thought was to find the car immediately if it was still available so an engineer could

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Odyssey — continued DAY-IN-THE-LIFE VIDEO SETTLEMENT DOCUMENTARY ANIMATION RECONSTRUCTION WRONGFUL DEATH VIDEO MARKETING VIDEO

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Insurance carriers appr eciated damages. appreciated Otto Haselhof Haselhoff, f, Esq. Law Offices of Otto Haselhoff Haselhoff

Motion MotionLit Lit VIDEO GROUP

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16 — The Advocate Magazine

MARCH 2014

inspect same. I called Vollmer-Gray Engineering in Long Beach/Signal Hill to help me locate it. One of the engineers, Steve Vollmer, was assigned the case. He advised me within days that the car had been sold for salvage to an individual in Azusa, California. He told me we needed to get there ASAP or the car would be chopped up and dismantled and sent off on a salvage barge to China or Japan. I told him let’s both go to Azusa and we did so in the next 48 hours. We arrived in Azusa at the salvage yard and met the owner, Noah Hippolito. Noah operated his own salvage yard for over 10 years, buying damaged vehicles for scrap/salvage value and dismantling them personally since he had no other workers at his shop. Noah had to be called as a significant percipient witness at trial since Mr. Vollmer and I learned upon arrival that he had already “dismantled” the Camaro. Noah told us almost everything had been sold for salvage/scrap metal including the deformed floorboard/firewall with the possible exception of the front-end wheel assembly which he believed he still had pieces of at his shop. I was devastated and thought there was nothing left of the case, but Mr. Vollmer asked Noah to show us where the remaining pieces might be. Noah took us to a dirt area behind his shop and pointed to where the pieces might be. Vollmer and I literally dug in the dirt like prospectors looking for gold nuggets. I had no idea what I was looking for other than the way Vollmer described the parts to me. About 20 to 30 minutes passed with no results until I heard Vollmer shout to me. Vollmer ran to me with a strange looking piece of twisted metal. It turned out to be the front-end wheel assembly attaching bracket. Vollmer felt sure by the manner of its deformation, and showed me the place where the metal had “torn”, that this was the defective/failed piece of the Camaro that had allowed the front tire to disconnect and move rearward and inward unrestricted into the Camaro’s floorboard/firewall crushing Teri Soule’s

feet and ankles. Our metallurgist, Larry Kashar, later confirmed this at trial. Larry had tested the bracket and showed the bracket had a porosity which caused it to crack and not hold the tire in place. The bracket failure confirmed a definite manufacturing defect. We labeled and marked the bracket as Exhibit “Q” for trial. Noah Hippolito testified at trial and identified the bracket for foundation purposes. Noah would have thrown Exhibit “Q in the trash that afternoon had we not found it. The case would never have gone to trial since there would have been no case without the defective part. However, we still were not out of the woods by a long shot. Having found the defective bracket we still needed to demonstrate how the front tire moved rearward and inward and crushed/deformed the floorboard and firewall of the Camaro causing the foot and ankle injuries to Teri. We only had some limited photographs to show the damage and no actual front end of the Camaro to show the jury since the rest of the car had been scrapped for salvage. Steve Vollmer and I decided the best he could do was to locate an exemplar Camaro with similar front-end damage and similar crush to the actual Soule vehicle and present this at trial to the jury. This presented a very tough problem, but fortunately Vollmer found an exemplar Camaro vehicle at a salvage yard in Long Beach. Vollmer had the exemplar worked up to cut out the crushed front end into two parts and put them on pallets with rollers. We literally had to load the pallets with rollers on the elevators at the Fullerton Courthouse where the case was tried and move them up to the second floor. The exemplars were large and heavy and were rolled into the “well” in front of the judge and stayed there throughout the trial. Furthermore, Vollmer also used the pallet/roller format to create exemplars of the front-end assembly of the Camaro and compared same to the front-end assembly of a Ford Mustang. We made the tactical decision to proceed on

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Odyssey — continued

BOTH product theories of manufacturing defect and design defect. We demonstrated that the Ford Mustang had stronger parts and a failsafe system in the event of any bracket breakage which was superior to the GM/Chevrolet system. As expected, GM’s defense counsel went crazy and argued and argued and argued both pre-trial and during trial with daily 402 hearings that all of the exemplar materials not be admitted into evidence. Every day at trial involved a battle an hour before the jury was ever brought in to hear testimony. The point of all of this to both veteran and novice trial counsel is to Secure The Defective Product In Its Entirety. The vehicle/product is the evidence. Exemplars are valuable, but they do not

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constitute the real item that is being challenged. The trial judge gave us great latitude and leeway to present our case. Had he not done so, Soule v. GM would not be with us today. Since Soule, Frank and I have handled at least three other cases where the defective product was lost or spoliated. We have received settlements on all of these cases because the defective product was not preserved. Preserve the product in its entirety for your engineers. Without it, your case may well be lost for your client, and you may be contacting your malpractice carrier.

Settlement talks and the trial

GM never took the Soule case seriously. The defense lawyers and claims representatives literally laughed at us

during settlement conferences. In the 1980s and 1990s in Orange County settlement conferences with the Court were always ordered a few days before the Master Calendar would send your case out to trial. Mediation was not considered an alternative at the time. The case had five settlement conferences because the trial date was repeatedly continued. At each conference the defense offer was always the same − “zero”. The defense always belittled Frank and me and kept telling us we were crazy to prosecute the case. A “zero” offer left us no alternative. Finally, in the summer of 1990 around mid-June, the case was sent out for trial. I was 42 years old and Frank was 46. As I write this article, I will be 66

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this year. Like the present drought we are experiencing, the summer in 1990 was very hot and dry for that year. We were assigned to the Fullerton Courthouse, Second Floor, Long Cause Calendar. Our trial estimate was at least 30 court days. The case lasted for three months before the jury finally rendered its verdict. We would work four days a week, Monday through Thursday from 9:00 a.m. to 4:30 p.m. Fridays were dark. By every Thursday, Frank and I were totally exhausted. The demands of the trial were allencompassing and totally physically and emotionally exhausting. I had no personal life and my practice was being handled by my paralegal, who ironically was able to settle one or two large cases to keep me going financially while I was in trial. Frank’s caseload was handled by his staff. We were totally engaged in the case. There was no turning back. In fact, the trial costs alone to include experts and other matters were approaching $200,000. If Soule had been lost, the firm would have had to shut down and close its doors. Everything was riding on a successful verdict in the case. As mentioned earlier, we were very fortunate to have a terrific trial judge, James “Jim” Alfano. Judge Alfano was the most courteous, kind, respectful judge that I have ever appeared before in my legal career. I say this not because of the favorable outcome of the case, but because Judge Alfano gave both sides every legal and reasonable opportunity to present their case. Judge Alfano did not rule in our favor on every occasion, but he was always fair and explained the reasons for his decisions. He always had a calm demeanor, especially during the daily 402 hearings and motions the GM defense team constantly made. We ordered “daily” reporter’s transcripts on a consistent basis throughout the trial. The scientific data was complex and significant, but the judge gave the jury every opportunity to understand what was being presented, from exemplars to medical evidence to detailed biomechanical testimony. Every Thursday the judge’s wife would bake and bring 20 — The Advocate Magazine

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M cupcakes to the jury, attorneys, and Court staff. It was our weekly relief. I was truly grateful as was Frank that Judge Alfano was our judge. Humor was a part of the trial as well. Frank and I both caught our pants and ripped our pockets on the exemplars in the well when we were dealing with witnesses and evidence. The jury would laugh with us when we did it and we also laughed at ourselves. Also, in one part of the defense case, Frank and I received retribution for the way the GM team treated us. One of the GM engineers inadvertently brought his personal notebook to the witness stand when he was testifying. The defense lawyers forgot to look through the notebook because in the material were attorney letters to the witnesses to include case evaluation and settlement value notes. Judge Alfano allowed us to look through the notebook, and we found the material. The judge, Frank and I were all smiling at each other as the defense teams were squealing to prevent the jury from hearing any testimony about the “evaluation” material. Frank and I both knew it would not come in as evidence and we did not want to mess up the record, but we did have fun with the witness and defense counsel. The judge laughed at what we did, but we never pressed to admit any of the material into evidence. By the way, after all of the “zero” offers, GM had evaluated the case at $250,000 settlement value. For whatever reason, GM never shared this information with us. Today, Judge Alfano conducts mediations at Judicate West. He is still as gracious and courteous a gentleman as ever. Except for the jury-instruction issues raised by GM on appeal, none of his other rulings was ever challenged by the defense on appeal. The jury was composed of 18 people, 12 regulars and 6 alternates. My recollection is we lost two people during the course of the long trial. Frank and I were very fortunate that in voir dire we discovered that because of the proposed length of the trial, many of the engineers who worked for Hughes Aircraft who resided

in the Fullerton jury pool area could not be off work for a long time. Hughes Aircraft was a big employer for many of these individuals, so both plaintiff and defense agreed to discharge them from service. This was very favorable to Teri Soule’s case since there was significant scientific data to be heard by the jury. Engineers often tend to be biased to the manufacturer and influence the other jurors in products’ cases. Fortunately for Teri, we ended up with postal workers, supermarket workers, housewives, a mechanic, retired people, students, and a California Lottery official. It was a great group of people and one of the supermarket workers was the jury foreman. On certain days of trial they would come dressed all in one color of shirt, i.e. all red, all green, etc. They were friendly and respectful to each other. After the trial and the verdict, Frank and I learned that the jurors were “with us” from the opening statement and Teri’s testimony. The defense had tried to “badger” Teri during cross-exam, and it backfired on them. Frank and I did not know this. We knew they liked us and smiled and laughed when we tore our pants on the exemplars. However, we never presumed and did not know if they would ever give us a verdict. Fear and hard work drove us.

Closing argument and jury instructions

The evidence presentation of trial ended on a Tuesday or Wednesday as I recall, and Judge Alfano put off closing argument to the next week so we could prepare our closing arguments and assemble the huge volume of evidence and work on jury instructions. Frank assembled five secretaries in our hotel suite to type up scripts and outlines of the closing argument. This process went on for hours and days. Frank and I worked round the clock putting everything together. Frank literally thought up the final piece to solve the puzzle on the day of

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final argument. He asked his son to bring a sledge hammer and a cookie pan to court but keep it from being seen by the jury and the defense. Judge Alfano let us put the items in his chambers. When the time arrived, Frank stopped his argument, left the lectern/podium and went to the judge’s chambers and returned with the sledge hammer and the cookie pan. Frank gave me the cookie pan, had me sit in a chair just in front of the jury and told me to take off my left shoe. I did as requested. Frank then raised the sledge hammer and was prepared to strike the cookie pan that I was holding up next to my left foot. The jurors, the judge and the defense counsel all rose from their seats nervously watching to see if Frank was going to hit my foot with the sledgehammer. Of course Frank did not strike the pan, but used the moment to describe how the broken/poorly welded bracket had allowed the front tire to move rearward and inward like a sledge hammer striking the floorboard (cookie pan) with such force to severely injure Teri’s feet and ankles. The argument was brilliant. The judge and jury were totally mesmerized by it, and the defense did not object. It was the dramatic moment of the trial and Frank and I smiled at each other. Frank’s argument lasted one and a half days including rebuttal. The defense argument lasted one-half day. Both sides rested and the case went to the jury. We were exhausted. The jury instructions had been primarily my responsibility to prepare and propound. We used the old BAJI instructions since CACI did not exist then. Since the plaintiff had proceeded on both manufacturing and design-defect theories Frank and I concurred that the use of the consumer expectation and risk-benefit instructions were appropriate based on how we had presented the case. We used an all-inclusive format because we were not sure that simply because the bracket was defective from a manufacturing perspective that this would enable us to prevail at trial. We went the extra yard to show how the Ford Mustang’s front end was superior 24 — The Advocate Magazine

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to the Chevy Camaro and designed in such a way to strengthen the assembly unit, so that if a bracket broke, there were other parts that could have assisted and resisted the front tires from moving rearward/inward into the floorboard. As the plaintiff ’s representatives we actually presented this material. But today the burden of proof under the riskbenefit theory would most likely have been shifted to the defense. We did this out of an abundance of caution because we did not know where the defense planned to go on the function of the entire front end of the Camaro. In today’s environment the defense should be hard-pressed under the burden of proof required in the risk-benefit instructions language of CACI 1204. Read the instruction carefully and in expert deposition lock the defense experts into what they intend to prove at trial on that issue. Your expert will need to address this, and if the defense does not come up with valid points to support the use of CACI 1204, bring a motion in limine before the trial judge to object to using CACI 1204 if the defense does not establish proof to use it. It will build a record on appeal as well. In October 2012, I had the privilege and opportunity to co-try a products case against an auto manufacturer regarding a defective engine component part. The case went to jury and a defense verdict was rendered, the case went up on appeal and eventually settled under confidential terms. The plaintiff ’s argument was to solely use CACI 1203/Consumer Expectations test based on the facts of the case and also that the defense had again not established any proof to use the CACI 1204/Risk Benefit Instructions. The trial judge refused to give CACI 1203 and insisted on using CACI 1204 after vigorous and strenuous objection and argument by the plaintiffs in the October 2012 case. My co-counsel and I felt that the trial judge had made an erroneous decision, which may have enabled us to resolve the case on appeal. If you look at the CACI, use notes under Instruction 1203 and you will see there are case law notes that allow the

trial judge to give both CACI 1203 and 1204 if there is any doubt about which theory should be used, and to let the jury decide. The case cited in the use notes is Soller v. Crown Cork & Seal Co. (2010) 187 Cal.App.4th 1220. CACI 1203 is the plaintiff ’s instruction. Ironically, I learned after the Soule verdict that the only real reason GM appealed the verdict was to further cloud the product-liability instructions in “crashworthiness” cases, to diminish the use of CACI 1203, and to bolster the use of CACI 1204. Press the issue hard in expert discovery to identify where the defense is going. Worst case scenario is to give both instructions if there is any doubt. Also remember, as Mr. Peters pointed out in his article, that the use of expert testimony does not preclude the consumer expectations test/jury instruction of CACI 1203. Soule clearly cites West v. Jackson (1985) 174 Cal.App.3d 831 for the proposition that expert testimony may be used even when proceeding with the CACI 1203 instruction. Don’t let the trial judge exclude your expert testimony if you are going to use the CACI 1203 instruction or force you to use only CACI 1204 if you have expert testimony.

Verdict/appeals/what now The jury was out for 1 1/2 days, and we received a call in the Santa Ana office around noon that there was a verdict. Frank and I were devastated. We thought we were going to be defensed. How could they rule that fast after three months of trial? It was September 25, 1990. We entered the courtroom at 1:30 p.m. and the jury was called in. The foreman handed the verdict form to the clerk as requested by the judge. Frank was closest to the jury, I sat next to him and Teri sat at my right. We all held hands. The clerk read the verdict and the box was checked that GM’s product was defective. Frank squeezed my hand, and I squeezed Teri’s hand. The rest of the verdict was read and no comparative fault was assessed against Teri. Finally, the damage portion was read, and the award was $1,650,000.

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Teri groaned loudly, Frank pounded the counsel table, and I was in shock. The jury was polled 12-0 in favor of liability and causation and 9-3 for damages. The three who voted against the verdict damage figure wanted to award more money to Teri. Frank and I were absolutely elated. We moved outside to the hallway and talked to the jurors. Two news media representatives were there and news stories started. The rest is history. We had kicked GM’s butt and won a case no one expected us to win. Frank, Teri and I went back to the office. We danced, sang, drank wine and beer and went out for a steak dinner. I felt like I had just won the World Series. It was unreal and surreal. The new-trial motions and the appeal came on us from GM like tidal waves. Frank hired Charlotte Costan as our appellate counsel. She wrote all of the briefs, but she did not argue cases, so the plan was that Frank would argue. On the day the case was argued, Frank was very sick, and I had to argue in his stead. The Court of Appeal ruled 3-0 unanimously in our favor. GM then successfully sought review in the California Supreme Court. The case was not heard until the fall of 1994 – four years after the verdict.

The Supreme Court heard the matter in San Francisco. Frank argued for Teri, and Bruce Broillet, Browne Greene and others were there arguing vigorously as amicus counsel on behalf of the Consumer’s Attorneys Association of California. The Supreme Court rendered a 6-1 decision with only Justice Arabian dissenting. The settlement check was finally issued on November 22, 1994. With costs and interest, the check amount was $2,373,041.05. Soule has been cited in products’ cases for the last 20 years and will continue to be cited for years to come. It is the authority on the use of CACI 1203 and CACI 1204 in products-liability cases. I highly recommend to any trial lawyer, both novice and veteran, to carefully read the decision. It is an invaluable piece of work and shows how involved a complexproducts’ trial can be. I am just glad I had the chance to be a small part of legal history and fought the good fight with a lifelong friend on behalf of a deserving tort victim.

Epilogue

the Pomona Courthouse in Los Angeles County. It seems only fair that the author felt moved to tell this untold story while waiting with other potential citizens to be called to serve on a jury panel. The Seventh Amendment to the U.S. Constitution still stands as the essential element in our legal system that distinguishes the U.S. from all other countries in the world. Trial by jury remains the great equalizer in our society. Soule v. General Motors is truly the example of how the underdogs overcame adversity to score an upset of the big corporate interests. With hard work and dedication to serving our clients, all things are possible. Douglas A. Scott is a sole practitioner in Rancho Cucamonga. He concentrates on major injury and wrongful death litigation, including auto accidents, slip and fall, products liability and medical malpractice. He has been named a Southern California “Super Lawyer” for the past five years. After the Soule case, Mr. Scott and Mr. Barbaro also co-tried two other cases to verdict, with sevenfigure awards in each.

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Randy McMurray and Katherine Hight

Third-party criminal activity and premises liability Foreseeability and safety precautions are keys to liability Recent case law on third-party criminal activity and premises liability has established a further understanding of the analysis California courts use in determining liability for the criminal acts of third parties, as well as the factual circumstances required to hold defendants liable for those acts. The current analysis consists of three parts: First, the court should examine what security measures the plaintiff contends the defendant should have implemented to prevent the harm plaintiff suffered; second, the court should evaluate the financial and social burden of providing those security measures; and third, the court must determine how foreseeable the third party’s conduct was in light of the factual circumstances of the case and balance that against the requested security measures. Factually, the prior acts giving rise to the duty of a defendant to prevent future acts must be similar in nature, but are not required to be identical. For example, prior criminal incidents involving property crimes such as robberies may not be sufficient to establish liability for a subsequent violent attack on a person where the prior incidents did not involve injuries to the victims. In another case, however, where prior criminal incidents involved a common underlying pattern (gang-related activity), that did establish a duty to prevent future criminal acts.

Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190

This case involves a murder at a Shakey’s Pizza in Hollywood, California. Mr. Alvarez and his friends went to Shakey’s for dinner. While the men in the group took the children to the arcade, the women remained at the table. While 28 — The Advocate Magazine

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at the table, the women were harassed by three other male patrons. When Mr. Alvarez and the group came back from the arcade, the women complained. Alvarez and his friends confronted the harassers. A fist fight ensued. The police were called. Thirty minutes later, the group of harassers returned and shot Mr. Alvarez to death. Plaintiffs brought an action for premises liability and negligence. During the trial, a Shakey’s employee testified to three prior acts of violence: two incidents where a gun was brandished and one where a fist fight occurred. The trial court granted defendant’s motion for non-suit basing its decision on the lack of foreseeability of Mr. Alvarez being shot by another restaurant patron. The court stated that a prior event has significance in establishing duty if that event increases the probability of harm in a reasonably foreseeable manner. The plaintiff has to establish that prior similar incidents of violent crime occurred on the premises. Essentially, the prior incidents in this case would have had to involve verbal and physical altercation between customers with a verbal threat of future harm and a return of one of the customers who commits murder. The prior incidents to which the Shakey’s employee testified, while violent, were not similar enough to the incident at bar and thus did not establish foreseeability.

Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666

Ann M. was an employee at a photoprocessing shop in a shopping mall. Early one morning, after she opened the store for business, a man entered the store and raped her. Ann M. claimed that

defendant failed to provide security patrols in the common areas and that constituted negligence. In the two years preceding the rape, there were bank robberies, assaults and purse snatchings at the shopping mall. The court held that under California law, landowners are required to maintain their land in a reasonably safe condition, including taking reasonable steps to secure common areas against foreseeable criminal acts that are likely to occur without such safety measures. Foreseeability can be established despite the absence of prior similar incidents on the premises; but if failure to provide adequate security is the cause of action, prior similar incidents are a must. The court further reasoned that while prior similar incidents are helpful to determine foreseeability, they are not necessary; instead, it should be assessed in light of the totality of the circumstance. Additionally, the scope of a landlord’s duty to provide protection from foreseeable third-party crime is determined by balancing the foreseeability of the harm against the burden of the duty to be imposed; thus, a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards. The requisite degree of foreseeability for requiring the hiring of security guards can only be proven with prior similar incidents of violent crime on the landowner’s premises.

Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327

Mr. Claxton pulled into a gas station at 4 a.m. He parked his car at the pump and walked up to the cashier window to

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pay for his gas and cigarettes. Mr. Claxton was confronted by an alleged gang member who began yelling racial epithets and chasing Mr. Claxton. The attacker began hitting Mr. Claxton with his fists and stabbing him with a screwdriver. Mr. Claxton alleged that defendant negligently operated the gas station and consciously took no efforts to protect and warn their patrons of the criminal activity on the premises. The trial-court record contained lengthy testimony regarding the gas station’s significant gang-related crime problems including an incident a few months prior when Mr. Claxton’s attacker robbed the gas station manager at knife point. The trial court granted defendant’s motion for non-suit finding that there were no previous racially motivated assaults at the station, the attack on Mr. Claxton was unforeseeable and therefore defendant did not owe Mr. Claxton a duty. Mr. Claxton appealed. The appellate court held that Mr. Claxton presented substantial evidence of notice to the defendant due to the significant crime problem at the gas station including the robbery at knife point, the robbery of a customer at the pump (both reported to defendant’s crime hotline), gang-member assaults and altercations at the station, gang graffiti, gang loitering and robberies. The court held that Mr. Claxton presented substantial evidence of prior similar incidents or other indications of reasonably foreseeable risk of violent criminal assault at the station, so as to put defendant on notice and impose a duty to provide additional security measures. The court reiterated that the test for foreseeability is prior similar incidents, not prior identical incidents.

Sharon P. V. Arman. Ltd. (1999) 21 Cal.4th 1181

In this case an unknown assailant sexually assaulted Sharon P. at gunpoint in a commercial parking garage owned and operated by defendants. Plaintiff paid a monthly fee to park in an assigned parking space located below her 30 — The Advocate Magazine

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building. One afternoon, she parked in her space and while preparing to exit her car, she was assaulted by a masked gunman. Plaintiff sued the owner of land and the owner of the parking company alleging failure to provide adequate security, including poor lighting and inoperative security cameras. She also introduced evidence that in two years before her rape, there were seven robberies in the bank on the ground floor of the building. Notwithstanding the numerous other robberies, the appellate court concluded that the rape was unforeseeable. The court reasoned that the bank robberies did not involve violent attacks against anyone and were not sufficiently similar to the sexual assault so as to establish the requisite degree of foreseeability to adopt various security measures.

Zelig v. County of Los Angeles (2002) 27 Cal.4th 112

Plaintiffs in this case are the minor children of a woman who was shot to death by her former husband in a Los Angeles courthouse. The decedent and her former husband were in the courthouse for a spousal and child-support hearing. On previous occasions, decedent informed the court bailiff that her former husband might attack or kill her in the courthouse. On at least one occasion, the bailiff searched him for weapons. The decedent sought and obtained restraining orders that prohibited her exhusband from possessing or carrying firearms. After one of the hearings, decedent and her ex-husband were headed downstairs when the ex-husband pulled out a concealed revolver and shot decedent in the chest. Plaintiffs brought a variety of causes of action of negligence against the county. Generally, although the government may assume responsibility for providing adequate police protection against thirdparty violence, there is no legal duty to do so and thus no civil liability for the failure to provide it. Public entities are generally not liable for failing to protect individuals against crime. Public entities,

however, are liable for injury caused by a dangerous condition of its property if the plaintiff can establish that the condition existed at the time of injury, the injury was proximately caused by the condition, the condition created a reasonably foreseeable risk of the kind of injury suffered and either an act or omission created the dangerous condition or there was actual or constructive notice of the dangerous condition in sufficient time to take measures to protect against it. The Court recognized that private landowners have a duty to maintain their premises in a reasonably safe condition and to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautions. Further, the Court recognized that a public entity may owe to members of the public a similar duty if it maintained the property in such a way so as to increase the risk of criminal activity or in such a way so as to create a reasonably foreseeable risk of criminal conduct. Essentially, there is no public-entity liability for injuries caused solely by the acts of third parties. Such acts must be combined with a defective condition of property for a public entity to be liable. The key to keeping a landowner in a case resulting from third-party criminal activity is to show that similar-type violence had occurred at the location in the past. Without allegations that the landowner had reason to suspect that this type of activity would take place on his property, there is no foreseeability, and without foreseeability there is no duty of care owed to patrons. If the plaintiff is claiming that not only should the landowner have reason to believe that criminal activity would occur on his premises, but that he should have taken steps, such as hiring security, to prevent it, you have just upped the ante. The more burdensome and costly the security measures you allege should have been taken, the more significantly related the prior criminal acts must be to the criminal act at issue in the current case.

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More recent case law has provided some hope for holding the premises owners and operators accountable when they expose their customers to an increased risk. The cases below shed light on the types of fact patterns that successfully establish a duty on the part of premises owners and operators to make efforts to reduce the dangers to people rightfully using the premises. Landlords and operators of premises cannot decline to take reasonable measures to protect their customers where the conduct on their premises establishes that criminal activity has occurred.

Castaneda v. Olsher (2007) 41 Cal.4th 1205

Plaintiff sued defendant, the owner of a mobile home park, for negligence after plaintiff was injured by a stray bullet shot during a gang fight in the mobile home park where he lived. After defendant purchased the 60-space park, there were several indicators of gang activity on the premises. Two persons hired to manage the property had reported general gang-related activity to defendant including graffiti, at least one sexual assault, witnessed drug sales, and gang members congregating in the park and intimidating other residents. In addition to the general gang-related activity at the park, there were two prior similar incidents that occurred in or around the park in the year and a half prior to the shooting incident in the case. Although neither shooting took place in the park, the shootings were closely connected to the park. Plaintiff sued defendant for premises liability. The trial court granted defendant’s motion for a nonsuit. Plaintiff appealed and the Court of Appeal reversed the judgment of the trial court and remanded the case for trial. The Court of Appeal held that when a landlord is on notice of the presence of gang members and gang activity on his property, it is reasonable to expect the landlord to make efforts to increase security measures on the premises. The California Supreme Court reversed that decision, saying that the 32 — The Advocate Magazine

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facts in this case did not make the violence at issue highly foreseeable and that imposing a duty not to rent to potential gang members is highly problematic because of the potential for housing discrimination. Further, a landlord is obligated to begin eviction proceedings against a tenant only where the risk of violence toward neighbors or others is highly foreseeable. In this case, evidence of two prior incidents involving gun violence, one involving a gang member, was offered to support that the gang violence in the instant case was highly foreseeable. However, neither of those incidents involved the tenant, and there was no way to connect them to those tenants’ propensity for violence. There were no reports connecting the tenants in question to gun violence, and no one had ever reported seeing any of them with a gun. To establish a duty to evict, the plaintiffs would have had to demonstrate that violence by those tenants or their guests was highly foreseeable.

Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224

This case arises out of a criminal assault against the plaintiff that took place in the parking lot of defendant’s bar. The bar employed two security guards, one to be stationed inside the bar and the other to be stationed on a stool outside the bar in the bar’s parking lot. During the time plaintiff and his wife were at the bar, plaintiff endured constant hostile stares from his attacker and friends, all of which were noticed by the inside security guard. Plaintiff ’s wife approached the security guard and expressed her concern that there was going to be a fight. In an effort to prevent a fight, the security guard asked plaintiff and his wife to leave. Thereafter, plaintiff was followed outside by the attacker into the parking lot where the attacker’s affiliates were waiting and was beaten by several people and suffered a fractured skull and a subdural hematoma. Plaintiff filed a personal-injury suit against defendant on a premises liability

theory. Defendant appealed the trial court’s decision that it was negligent contending that because there was no evidence of prior similar assaults either on its premises or in the vicinity, the assault upon plaintiff was unforeseeable as a matter of law, and that as a consequence it owed no duty to provide a security guard and thus was not liable. Plaintiff responded to the argument by asserting that defendant owed him a duty of care because of the special relationship created by the hiring of security guards. The Court of Appeal reversed the judgment in favor of the plaintiff, concluding that although there was evidence establishing that prior fights had erupted in the Trax bar parking lot, there was no evidence of any previous “coordinated gang attack” by “a large group of assailants lying in waiting in the parking lot”. The California Supreme Court affirmed the decision in Claxton, reiterating that foreseeability remains a highly relevant factor and that the test for foreseeability is prior similar incidents, not prior identical incidents. The Court disagreed with the Court of Appeal that the defendant owed a duty to plaintiff pursuant to the special relationship doctrine because plaintiff produced insufficient evidence of heightened foreseeability in the form of prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assault on defendant’s premises. If that heightened foreseeability had been established, it would have imposed upon defendant an obligation to provide a guard or additional security guards to protect against third-party assaults. The absence of heightened foreseeability, the Supreme Court found, did not signify that defendant owed no other special-relationshipbased duty to plaintiff, such as a duty to respond to events unfolding in its presence by undertaking reasonable, relatively simple, and minimally, burdensome measures. Further, the Court recognized that because defendant had actual notice of an impending assault involving the attacker and plaintiff, its special-relationship-based duty included an obligation to

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take reasonable, relatively simple, and minimally burdensome steps to attempt to avert the danger such as attempting to dissuade the attacker and his group from following plaintiff outside to the parking lot.

Morris v. De La Torre (2005) 36 Cal.4th 260

Mr. Morris, who was a frequent customer of defendant’s restaurant but who did not plan to eat on that occasion, waited outside in the front parking lot while his companions purchased food. Two gang members arrived and began punching Mr. Morris and throwing cans of beer at him. One gang member ran inside the restaurant and departed from the kitchen with a knife. The gang member stabbed Mr. Morris at least twice and used the knife to puncture the tires on the vehicle that he had arrived in. The gang members drove off in their car and soon tracked down Mr. Morris and stabbed him several more times. The criminal attack upon plaintiff in the parking lot commenced in full view of the restaurant’s three employees. Plaintiff brought an action for visitor’s negligence. The Court of Appeal ultimately concluded that defendant had a duty to take reasonable and minimally burdensome measures to aid plaintiff in the face of an ongoing attack occurring upon the premises and in the presence of the proprietor’s employees, although at the time of the attack, plaintiff was not a customer planning to eat. Plaintiff asserted that in this case, measures reasonable under the circumstances included defendant’s employees’ use of the restaurant telephone to call 911 in order to summon assistance. The Court stated “[w]hen consistent with the purpose for which the invitation is implicitly or explicitly issued, those who accompany the invitee are themselves invitees.” (1 Dobbs on Torts, supra, section 234, at p. 601.)

Yu Fang Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087

Plaintiff in this case was shot by an assailant during a carjacking that 34 — The Advocate Magazine

MARCH 2014

occurred in an unsecured area of the parking lot of an apartment complex. Plaintiff had returned home at approximately 11:30 p.m. and was unable to locate an available parking space anywhere other than the leasing office lot, where residents were given special permission to park overnight. Plaintiff brought an action for negligence, loss of consortium, and fraud against the landlord. The fraud claim was dismissed on summary adjudication. At a pretrial hearing, plaintiff ’s expert identified three prior violent incidents on the property that bore a strong resemblance to the incident that led to Plaintiff ’s paralysis in the instant case. The prior incidents all involved violence late at night against strangers in unsecured areas of the parking lot. The first incident was an assault with a deadly weapon that occurred near the maintenance garage on the property; a bicycle patrol guard saw a person standing by the garage in the middle of the night and was attacked when he stopped to ask the person what they were doing on the property. The second incident was a robbery that occurred about a year before the attack on the plaintiff, prior to the installation of gates at the back of the property. The assailants blocked a tenant’s car, struck him on the head, and took personal property from him. The third incident involved a sudden, violent attack on a tenant late at night in the parking lot. The victim suffered heavy bleeding from the face, and although the victim did not report the use of a weapon, the severity of the attack led police to classify it as an assault with a deadly weapon. The trial court granted judgment on the pleadings, and plaintiff appealed. The Court of Appeal reversed, saying that the prior violent incidents were sufficient to establish foreseeability for future violence. In addition, the security measures that plaintiff proposed were held to be minimal and not overly burdensome in light of the facts of the case. Plaintiff asked for an extension of the existing gate structure or some other minimal steps to establish the boundary of the

property. The court noted that the trial court’s interpretation of plaintiff ’s request imputed security measures not actually requested: there was no request for a guard gate or an overnight guard to admit invited guests beyond an extended fence.

Conclusion

Recent plaintiffs who have been successful in holding premises owners and operators liable for third-party criminal acts have established patterns of criminal activity that render the criminal act that led to their injuries foreseeable, and proposed reasonable security measures that would have prevented those injuries in light of the factual circumstances. To maximize a plaintiff ’s chances of success, practitioners evaluating these cases should look for common facts underlying the history of criminal acts on the premises, as well as security precautions that are reasonably tailored to the circumstances that would have prevented the plaintiff ’s harm. Randy McMurray is principal of McMurray-Hendricks, LLP. His practice areas include all types of catastrophic injury and business fraud. He has been awarded an AV rating in Martindale-Hubbell for the last 11 years. He has been selected as a Super Lawyer since 2006 and by LawDragon as a Leading Litigator since 2006. In 2009, McMurray served as the first African American president of CAALA and has been on the Board of Governors for over 15 years. He was chosen as a Man of Valor by the NAACP Youth Counsel for 2011. Katherine Hight is Of Counsel to McMurray-Hendricks LLP and handles all aspects of litigation, with particular expertise in business, real estate, and toxic tort matters. She also has significant experience in federal and state legislative advocacy. She is admitted to practice before all California state courts and the United States District Court for the Central District of California. She belongs to the Environmental and Litigation sections of both the State Bar of California and the Los Angeles County Bar Association.

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Gregory L. Bentley

Steven M. Schuetze

“There should have been a stop sign” The tools to defeat defendant’s motions based on statutory defenses for a dangerous condition of public property When pursuing any case involving a dangerous condition of public property, you will be required to navigate through the various statutory defenses and immunities in opposing motions for summary judgment, motions for nonsuit, and motions for directed verdict. Oftentimes your case will involve issues of a thirdparty’s negligence contributing to the cause of the accident. In such situations, the public entity may claim that no dangerous condition exists because the third party “failed to exercise due care”. In many cases, the public entity will also claim a complete defense based on immunities for the failure to post signs and signals under California Government Code section 830.4, or design immunity under Section 830.6. In addressing and defeating these potential defenses, an understanding of the relevant case law is imperative. Here is a general overview of some of the most important cases.

Dangerous conditions and third-party negligence

A dangerous condition of public property is defined by California Government Code section 830, subdivision (a) to mean “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The plaintiff is “required to establish that the condition was one that created a hazard to a person who foreseeably would use the property or adjacent property with due care.” (Law Revision Commission Comments to Government Code § 830, emphasis added.) Even though a dangerous condition exists when there is a substantial risk of injury to any foreseeable user using the property with due care, public 36 — The Advocate Magazine

MARCH 2014

entities quite often improperly assert that a dangerous condition does not exist when there is also third-party negligence causing the accident. California law is clear that the existence of third-party negligence does not preclude a finding of liability caused by the public entity’s failure to provide reasonable and adequate safeguards to “protect against” a dangerous condition of public property. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 153-154; Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799, 811; Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 718-719; Baldwin v. State of California (1972) 6 Cal.3d 424, 428, fn. 3; Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789.) As was stated in Swaner, “[t]he third party’s negligence, however, does not negate the existence of a ‘dangerous condition.’” (Swaner, 150 Cal.App.3d at 804, cited with approval in Bonanno, supra, 30 Cal.4th at 153 fn. 5.) In Baldwin the plaintiff ’s vehicle was struck from behind by another vehicle as he was stopped to make a left-hand turn. The plaintiff contended “that the intersection of Hoffman and Central constituted a dangerous condition for northbound motorists desiring to turn left onto Central because of the absence of a left-turn lane, the heavy traffic, and the high speeds on Hoffman Boulevard.” (Baldwin, 6 Cal.3d at p. 428.) The Baldwin Court stated that the fact that the third party was negligent was not a defense to the State’s liability for a dangerous condition. Of course the fact that any negligence by the state would not have resulted in injury to the plaintiff without the additional negligence of the driver who struck him from the rear is no defense to plaintiff ’s claim against the state. ‘If an injury is produced by

the concurrent effect of two separate wrongful acts, each is a proximate cause of the injury, and neither can operate as an efficient intervening cause with regard to the other. [Citations.] The fact that neither party could reasonably anticipate the occurrence of the other concurrent cause will not shield him from liability so long as his own negligence was one of the causes of the injury. [Citations.] (Baldwin, 5 Cal.3d at p. 428, fn. 3.) In Ducey, the California Supreme Court held that the State had a duty under California Government Code section 830, subdivision (b) to protect against cross-median accidents by providing the safeguard of median barriers. The Ducey court further held “the state gains no immunity from liability simply because, in a particular case, the dangerous condition of its property combines with a third-party’s negligent conduct to inflict injury.” (Ducey, 25 Cal.3d at 718719.) In Peterson, the plaintiff alleged a dangerous condition existed for the failure to properly trim trees and foliage when she was assaulted in a public parking lot. The California Supreme Court held that a public entity may be liable under section 835 if it maintains its property in a manner that fails “to protect against harmful criminal conduct on its property.” (Peterson, 36 Cal.3d at p.811.) The California Supreme Court revisited the interplay of third-party negligence and a dangerous condition in Bonanno. There, the plaintiff pedestrian was struck by a car as she crossed a busy thoroughfare at an uncontrolled intersection to get to a bus stop. The Bonanno Court held that the location of the bus stop could constitute a dangerous condition. As to the third-party’s negligence,

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the Bonnano Court stated the general rule “that a physical condition of the public property that increases the risk of injury from third-party conduct may be a ‘dangerous condition’ under the statutes.”(Id. at p.154.) Swaner provides a good example of a public entity’s liability for failing to provide safeguards to protect against a thirdparty’s negligence. Swaner was in fact cited by the California Supreme Court with approval in Bonnano, 30 Cal.4th at 153 fn. 5. In Swaner, plaintiffs who were trespassing on the beach at 2:00 a.m., were injured when they were struck by a vehicle that was negligently and illegally racing on the Santa Monica Beach. The plaintiffs sued the City of Santa Monica

alleging a dangerous condition existed for failure to erect a fence or barrier to restrict and prevent vehicle access to the beach by negligently and/or illegally driven vehicles. The trial court sustained a demurrer without leave to amend. The Court of Appeals reversed. The Swaner Court framed the issue as follows: To successfully allege a ‘dangerous condition’ within the meaning of section 830, a plaintiff must allege that the condition of the public property created a substantial risk when ‘used with due care’ in a foreseeable manner. In the case on appeal, it is extremely difficult to conceive of a situation wherein an unauthorized driver of a vehicle on the Santa Monica beach can be said to

be exercising due care particularly in light of the City’s Code section 3355. In essence, appellants assert that the beach was in a dangerous condition because the absence of a barrier or fence allowed for the foreseeable use of the beach by third persons who would not exercise due care. We must determine whether such a contention is in conflict with the definition of a dangerous condition in section 830, which requires a substantial risk when public property is used with due care. We conclude in our discussion below that there is no conflict. (Swaner, supra, 150 Cal.App.3d at p.798.) The Swaner Court held that the third-party’s negligence does not negate

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the existence of a “dangerous condition.” (Id. at p. 894.) In Swaner, the Court held that the absence of a barrier to prevent vehicle access constituted a dangerous condition of the property, and “such thirdparty conduct may be the very risk which makes the public property dangerous when considered in conjunction with some particular feature of the public property, viz., the lack of a fence or barrier as alleged herein”. (Id. at 804, emphasis added).

Traffic signals and signs

California Government Code section 830.4 provides immunity for a public entity for the failure to install traffic control signals, stop signs, right-of-way signs, speed restriction signs, or distinctive roadway markings as described in section 21460 of the Vehicle Code.

When a public entity undertakes to install traffic signs and signals and “invites public reliance upon them, it may be held liable for creating a dangerous condition in so doing.” (De La Rosa, supra, 16 Cal.App.3d at 746.) As was stated in De La Rosa, supra, a “crucial factual issue was whether the position of the stop sign constituted a dangerous condition.” (Id. at 746.) “[A]lthough a public entity is not liable for failure to install traffic signs and signals, (Gov. Code, §§ 830.4, 830.8), when it undertakes to do so and invites public reliance upon them, it may be held liable for creating a dangerous condition in so doing. [Citations omitted]” (Ibid.) While there is no liability for the failure to install signs such as a speed limit sign under California Government Code section 830.4, once those signs are

installed, the governmental entity is not immune from liability for the dangerous conditions created by virtue of the positioning of such signs. (Id.; see also Bonanno, supra, (dangerous condition created by location of bus stop.) In Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, the court held that a dangerous condition existed and there was no immunity under Government Code sections 830.4 and 830.8 where a stop sign was located at a point so far from the place where a stop was required that it was deceptive to motorists. The Bakity court stated the fact that the stop sign was located 36 feet east of the easterly line of the intersection could constitute a dangerous condition. The court stated that “it is common knowledge that

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stop signs are normally placed at the point where vehicles are intended to be stopped. In the present case there was expert testimony by defendant’s traffic

engineer to that effect. Placing a stop sign in an unanticipated position could constitute a trap for an unwary motorist. Although sections 830.4 and 830.8 of the

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Government Code . . . provide that a public entity may not be held liable for failure to install traffic signs or signals, when it does so in such a manner as to constitute a trap, liability may be imposed for the maintenance of a dangerous condition.” (Id. at p. 31.) In Briggs v. State of California (1971) 14 Cal.App.3d 489, the court held that once the state undertakes to sign an area (which in that case involved a location where there had been prior slides) it could be held liable for creating a dangerous condition for inadequate or deceptive signs. The Briggs Court stated: The state’s liability here can be predicated on the inadequate warning sign placed in the southbound lane. The uncontroverted evidence indicates that the non-reflective 24-inch sign with 4-inch letters placed in the southbound lane was not “very visible” to passing motorists, did not meet the specifications for a 30-inch by 30-inch reflecting sign with 5-inch letters called for by the state manual, and was placed only 320 feet north of the slide instead of the required 400 feet. Accordingly, here, as in Bakity, and Hilts, the state having undertaken to sign the area was obligated to sign it properly and should have to answer for any inadequate or deceptive warning proximately contributing to the accident. (Briggs,14 Cal.App.3d at p. 497.) In Hilts v. County of Solano, (1968) 265 Cal.App.2d 161 the court found that once the County of Sonoma undertook to install signs at an intersection, it be could liable based on the inadequacy of such signs. The court explained that, where the public entity undertakes to install signs and such signs themselves create a dangerous condition, liability may be predicated on this basis. In Hilts, the state of the evidence was such that the trier of fact could conclude that the subject intersection was a trap to a person using the street or highway with due care. Accordingly, it was also a question of fact whether County failed to provide the warning devices or signals

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necessary to warn of the dangerous condition. The warning signs that were installed were such as to warrant the inference that they did not accurately depict the intersection and might themselves have been partly responsible for the dangerous potential of the intersection. The court therefore concluded that it did not appear that as a matter of law [that] County was immune from liability under sections 830.4 or 830.8.” (Hilts, 265 Cal.App.2d at p. 174.) In Bunker, supra, the plaintiff Bunker was riding a motorcycle up a steep hill on Adams Street. Approximately 55 feet on the far side of the crest of the hill, a driver was backing her car out of the driveway. As Bunker reached the crest of the hill, he was traveling 25 to 30 mph and unable to stop before colliding with the backing vehicle. While the posted speed limit on Adams Street was 25 mph, approximately 500 feet from the crest of a hill there was a sign that stated “Slow to 15 mph.” The jury found that Bunker was 44 percent comparatively negligent and the City was 56 percent negligent under California Government Code section 830.8 for the failure to warn. The Appellate Court in Bunker affirmed the judgment. The Bunker Court stated:

The sign which advised oncoming traffic to slow to 15 miles per hour was sited three intersections away from, and approximately 500 feet below, the crest of the hill. There was evidence that motorists could not tell whether the warning applied to the intersections or to the grade of the hill. The jury’s conclusion that the City failed to warn motorists about a dangerous condition is supported by evidence which, if not exactly overwhelming, squeaks by the current standard for substantiality of evidence. (Id. at pp. 328-329.)

and discretionary immunity, are questions of fact for the jury to decide, and only become issues of law if the facts are undisputed. (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 74-75; Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550; Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.) The immunity of section 830.6 is an affirmative defense which must be pleaded and proved.” (Cameron v. State of California (1972) 7 Cal.3d 318, 325.) “[T]he defendant public entity has the burden of pleading and proving the defense of design immunity and each of the essential elements of it, and that an eventual failure to prove any of the enumerated ingredients is fatal to the applicability of that defense. (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 574.)

Design immunity

California Government Code section 830.6 provides the statutory basis for a public entity to assert a defense of design immunity. A public entity claiming design immunity must show the existence of three elements: “(1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design.” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.) The first two elements, causation

Design-caused accident required

“By force of its very terms the design immunity of section 830.6 is limited to a design-caused accident.” (Fluornoy v. State (1969) 27 Cal.App.3d 806, 811.) “The conditions of the project in actual use after completion may generate intervening causative forces.” (Id. at 813.) “Stated

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otherwise, it [design immunity] does not immunize against liability caused by negligence independent of design, even though independent negligence is only a concurring proximate cause of the accident.” (Mozzetti, supra, 67 Cal.App.3d at p. 575.) In Fluornoy, an accident occurred because of ice that developed on a bridge as a result of moisture that condensed and froze from the flow of water under the bridge. The Fluornoy court held that design immunity was not available for the presence of ice on the bridge. “Ice on the roadbed was not an element or feature of the plan or design of Cleer Creek Bridge. Section 830.6 protects the public from liability for reasonably conceived design choices made in the exercise of discretionary authority. [Citation omitted]. The ice on the Cleer Creek Bridge was a consequence of the bridge’s physical surroundings, not a design choice.” (Fluornoy, supra, 275 Cal.App.2d at p. 812.) In Mozzetti, the owner of a motel and trailer park brought an action for flood damage to his property. Some of the evidence demonstrated the flooding and damages “were caused, at least partially, by the poor maintenance and clogging of the drainage system.” (Mozzetti, supra, 67 Cal.App.3d at p.575.) Mozetti held that the required element of causation between the design and the flooding was absent since the damages were proxi-

mately caused in part by negligence, the defense of design immunity was not available to the City of Brisbane.

Discretionary approval required

Discretionary approval before construction, “means approval in advance of construction by the legislative body or officer exercising discretionary authority.” (Granier, supra, 57 Cal.App.4th at 940.) “An actual informed exercise of discretion is required. The defense does not exist to immunize decisions that have not been made” (Levin v. State of California (1983) 146 Cal.App.3d 410; Cameron, supra, 7 Cal.3d at 326.) As was stated in Cameron, supra, “[t]hus, there would be no reexamination of a discretionary decision in contravention of the design immunity policy because there has been no such decision proved.” (Ibid.) Since this accident was not a “design-caused” accident but rather one which occurred in actual operation subsequent to its design, Caltrans also cannot prove the second element of discretionary approval to establish design immunity. In Cameron, it was alleged that superelevation around a curve constituted the dangerous condition causing plaintiffs to lose control of their car. The plans showed the course of the right-ofway and the elevation of the white center strip of the road, but there was no evidence “the superelevation which was actually constructed on the curve ... was the result of or conformed to a design approved by the public entity vested with discretionary authority.” (Id., 7 Cal.3d at p. 326.) The Court held that the state failed to prove a discretionary decision was actually made regarding the dangerous condition which caused plaintiffs’ accident. (Ibid.) While in Cameron, there is an overlap between the two required elements of discretionary immunity of causation and discretionary approval, it has been held “[t]he distinction is academic. If the injury-producing element was not part of the discretionary approved design, immunity is defeated.” (Granier, supra, 57 Cal.App.4th at p. 941, fn. 7.)


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In Levin, supra, the plaintiffs asserted a dangerous condition of Highway 37 based on a 1974 reconstruction. In 1969, eight-foot shoulders were added on the north and south sides of Highway 37 with two lanes of travel. In 1974, the eight-foot shoulder was eliminated, creating three lanes of travel, with only a three-foot paved shoulder on top of an embankment with no guardrail. The plaintiff introduced evidence that the Division of Highways 1971 Traffic Manual required guardrails at the location. Caltrans introduced evidence that the plans were approved by deputy highway engineer, J.A. Legarra, within his authority. The Court of Appeal held that the State had failed to meet its burden regarding discretionary authority. “The state made no showing that Legarra, who alone had the discretionary authority, decided to ignore the standards or considered the consequences of the elimination of the eight-foot shoulder. It follows that the state also failed to establish the second element of the defense.” (Id. at 418.) Similarly, in Hernandez v. Department of Transportation, (2004) 114 Cal.App.4th 376, the plaintiffs offered evidence that the state violated Caltrans’ then applicable guardrail installation guidelines completed in May 1971 on an off ramp. It was noted that “[a]ny deviation from the applicable guidelines required the designer to obtain formal approval, which would be recorded in ‘project approval guidelines.’” (Id. at p. 539). There was no evidence that any of the three engineers who signed the as-built plans actually considered the guardrail installation guidelines and approved the purported deviation from the guidelines’ requirements. (Ibid.) The Court of Appeal reversed the trial court and held that there existed triable issues of material fact as to the discretionary authority since “[c]onflicting evidence was presented in the trial court as to whether the offramp design at issue in this case deviated from the applicable guardrail standards and, if so, whether the deviation was knowingly approved by the responsible Caltrans authorities.” (Id. at p. 545.)

Loss of design immunity If a public entity is able to meet the elements for design immunity under California Government Code section 830.6, the design immunity can be lost based on evidence of changed physical conditions. (CACI 1123; Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63; Baldwin v. State of California (1972) 6 Cal.3d 424.) Baldwin succinctly stated: [D]esign immunity persists only so long as conditions have not changed. Having approved the plan or design, the governmental entity may not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual operation of the plan. Once the entity has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard. . . we conclude that it did not intend that the design immunity provided by section 830.6 would be perpetual. (Baldwin, supra, 6 Cal.3d at p.429.) The elements for proving the loss of design immunity are set forth in Cornette, supra, 26 Cal.4th at 66. To demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. (Ibid.) The Cornette Court held that plaintiffs have the right to a jury trial as to the claim of loss of design immunity. CACI 1123 sets forth these elements and

should be requested on any case where the loss of design immunity is claimed.

Conclusion

If you are pursuing a claim for a dangerous condition of public property, you will undoubtedly be served with a motion for summary judgment raising some of these issues. Defeating the motion will often hinge on your understanding and application of the immunities and the case law interpreting these immunities. Greg Bentley is a Partner at Shernoff Bidart Echeverria Bentley specializing in the representation of consumers on a wide variety of cases, including insurance bad faith and catastrophic personal injury and wrongful death claims. He has been recognized as a Super Lawyer by Los Angeles Magazine (2010, 2011, 2012 and 2013) and is a member of ABOTA, currently serving on the Executive Committee of the San Bernardino/Riverside Chapter. Bentley was named the 2012 Trial Lawyer of the Year by the Consumer Attorneys of the Inland Empire and was a finalist for the 2012 CAALA Trial Lawyer of the Year Award. He is the Past President of the Consumer Attorneys of the Inland Empire (2010 & 2011) and sits on the Executive Committee of the Board of Directors of the Consumer Attorneys of California. Steven Schuetze has worked at Shernoff Bidart Echeverria Bentley LLP since 2006, working on a variety of insurance bad faith and serious personal injury/wrongful death cases. He is the lead attorney in the Firm’s Law and Motion Department, working extensively with partners Mr. Bidart, Mr. Echeverria and Mr. Bentley. Mr. Schuetze was admitted to the State Bar of California in 1989, and the State Bar of Washington in 1990. He has briefed and argued numerous appeals before the Ninth Circuit Court of Appeals as well as the Second, Fourth, and Sixth Appellate Districts of the California Court of Appeals.

MARCH 2014

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Jeffrey J. Greenman

Litigating slips, trips and falls: Don’t fall on your face If you have a credible client, the elements of liability and have taken steps to preserve the evidence, this can be a rewarding case Client screening

Client credibility should be your first concern before taking a slip-and-fall case. We can all play the devil’s advocate in our cases, but slip and falls — like lowimpact auto cases — should be addressed with careful scrutiny. That scrutiny must start with your client and their story. Juries tend to look at slip-and-fall cases with disdain, as they do with low-impact auto-accident cases. The only difference is that juries, given the opportunity in slip-and-fall cases, will chalk up the injury to the client’s own doing. Credibility: Upon your first meeting with a potential slip-and-fall client, take copious notes and lock down their story, much like you would in a deposition. Make sure you know exactly, what, when, where and why the accident occurred. Ask the hard questions the defense will ask: “Why didn’t you see the water?” “Where exactly was the liquid?” “What direction were you looking at the time of the fall?” “Why weren’t you looking down and ahead of you at the time of the fall?” “What kind of shoes were you wearing?” Also, take some time to get to know your client. Is the client likable? Good at communicating? Does the client’s story make sense? Use your knowledge of human factors and what an average person would have done in the same situation to size up comparative liability. Defendant: This is an important point. Don’t just look to see if there is a corporate defendant and large policy limits. You need to research the company, and specifically the location to address the value of the case. Is this a “mom and pop” hardware store, or is it The Home Depot? Large stores will typically have policies and procedures for cleaning “sweep sheets.” In a jury’s mind, larger stores are more culpable for failures in keeping safe premises. (See research 48 — The Advocate Magazine

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study by Christopher Denove, “Quantifying the Subconscious Bias against Corporate Defendants,” Advocate August 2013.) If you are going after a small store with one location, a jury may be more inclined to give them a pass because of their limited resources. This is the time to start thinking about other possible defendants. For example, was there a subcontracted company that was hired to maintain the premises, clean the floors, do landscaping, install flooring or tile grit? If a company represents that its flooring carries a certain co-efficiency of friction and testing shows an unacceptable level, then you may have a products case to add into the fray of litigation. Code violations: Review case law, safety codes and discuss possible violations with an expert. Building a negligence per se claim will greatly help you. Measure the size of cracks in the sidewalk or roadways. Request maintenance records from the city or local governments showing the last time the area was checked. Keep in mind that any government employee can give notice of the dangerous condition to the government entity; i.e., police officers, city workers, landscaping crews hired by the city, etc.

Preserving evidence Clothing: When you first receive a phone call about a potential slip-and-fall case, you should immediately request that your client preserve all the clothing (including shoes!) he or she was wearing at the time of the fall. Tell them NOT to wash the clothing as there may be remnants of the slippery substance on them…i.e., mustard, mayonnaise, mud etc… Tell them to bring the clothing to you upon your first meeting. Preserve this evidence so that it is not lost or tampered with.

Shoes are very important to any slipand-fall litigation. Be wary of a client wearing high heels or other unsafe footwear at the time of the fall. Location: If available, grab your expert and head to the scene immediately. If you do not have an expert, visit the scene yourself. Bring a camera to take photos and videos of the scene. The closer in time to the accident you do this, the better. You want to get into the facility, if possible, before remedial measures are taken. This will help your client’s credibility when describing the scene at the time of the fall if the store changes things later. Take measurement of any cracks in pavement. Bring a ruler to place inside or next to the crack for a frame of reference in your photographs. Keep in mind that the more evidence you personally preserve, the more likely you will interject yourself into the litigation as a witness. So, whenever possible, bring along an expert or a private investigator, or have them go to the scene for you. Request evidence preservation: Immediately after meeting with your new client, you should send out a preservation of evidence letter to potential defendants. The letter should basically direct them to retain any and all evidence and communications related to the incident, including video, photos, samples of flooring, the actual product that spilled and whatever else may be helpful to your case. If you are dealing with a public entity, you should send a Freedom of Information Act request to the appropriate authority and ask for records about your client’s fall and other falls in the same location. Also, a public-records search may produce construction permits that can be helpful to you and your

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Falls — continued expert. Search prior lawsuits regarding that company and location and inquire/search on the CAALA list-serve for attorneys who have dealt with lawsuits against the same company. Always do a Google and Facebook search about the company as they may contain claims of safety or the incident which you can use against them. Witness Accounts: Obviously, if there were any witnesses (usually family members or friends), get statements from them while the incident is still fresh in their mind. After that, you are limited to employees of the defendant, who are not typically helpful. And do not forget about emergency personnel: Their testimony can be helpful about what occurred as well as the injuries sustained or wet clothing (and possibly statements made at the scene). The longer you wait to take these depositions the less value they have, so act fast.

Discovery

You should ask, in your initial round of discovery, for the ownership, builder, subcontractor and product information concerning where your client fell. This includes asking for flooring type, year it was manufactured/built and put into use. Also, obtain the sweep sheets and other documentation of cleaning and maintenance. These records and reports can make or break a case. You will want to depose the people named in those reports and question them as to what they did on the day of the incident. Make sure you lock down the times that the last sweep occurred and when the fall happened. Get the handbook of the business and go through the cleaning protocols. It is typically very easy to pick out things that were not done, or not done correctly. This type of proof helps to shore up your negligence claim. Video: Most major grocery chains will have video of each aisle which can be obtained with a preservation-of-evidence letter and discovery requests. It is important to watch these and have your expert

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MARCH 2014

in human factors analyze them. Sometimes a video of your client’s action could save you time and money if the actions of your client were negligent. On the other hand, it can show how long the spill was on the floor, the size, the color, how it got there; it can show employees in the area (giving notice), and what exactly happened. This is the single most important piece of information in cases against large supermarkets and stores. Always request all video for an hour or more before and up to the time of the accident. You will find that some stores will “lose” the video if it is not in their favor. You should always request video for the entire store at the time of the incident to show the inference about how convenient it is that the only camera not working was the one where the accident occurred. Your basis for wanting all the camera footage should be to show where the other employees were located at the time (notice). Notice: You need to prove that the store had or should have had “actual or constructive notice” of the dangerous condition. Take a look at the CACI/BAJI jury instructions on this topic for guidance. Your expert can help guide you through what questions can prove constructive negligence. The requirements for this typically weigh in on the amount of time the spill was there; i.e., if it was an ongoing freezer leak in a store aisle or if it was a Sprite can that leaked 30 seconds before the fall. You have to show that the store had, or should have, known about the spill and done something to prevent the danger. Stores need to put warnings up when floors are wet; failure to do so is clear liability.

Comparative negligence: Be wary of your own client’s negligence. Slipping on water is much different than slipping on bright yellow mustard in a store aisle. If the cause of the slip was on a substance that is bright or easily seen in contrast to color of the floor, you may be in for a long fight. In general, people need to use care in where they walk and how they conduct themselves. If your client should have seen the danger and had the opportunity to avoid it, you should think about passing on the case.

Litigating

Reptile approach: Concern the theme of your case around public safety. Invoke the reptile response to companies who have no care for the public at large. Taking action now will stop this from happening in the future. Do not overstate your damages. In most cases, it is hard to get a jury angry enough to justify swinging for a home run. Be reasonable in what you ask for; be reasonable in your approach and you can be successful in these cases. Jeffrey Greenman is the founding partner of Greenman Law P.C. in Newport Beach. His practice has focused on personal injury and medical malpractice litigation for the past six years. He attended the University of Washington for his undergraduate degree and Chapman University School of Law for his J.D. Currently, he is an active board member of CAALA and a director of the Los Angeles Trial Lawyers Charities (LATLC). He serves on the board of the Long Beach Bar Barristers division as well as being an active member in CAOC and AAJ. He was CAALA’s first ever recipient of the “Rising Star” award in 2012.


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Steven A. Heimberg

Medical-care issues that can kill your personal-injury case Don’t let defendants try to use malpractice as a shield to defeat your case Personal-injury cases almost always involve medical issues, and there are many traps for the unwary, particularly when the quality of the medical care is at issue. Virtually without exception, any injury case with substantial damages will become entangled with medical issues. There will always be issues of how to maximize the economic damages, usually dependent on numerous, sophisticated medical analyses. If medical malfeasance is even colorable, it will be necessary to protect the noneconomic damages from being decimated by: (1) MICRA; and (2) Proposition 51, which is (mis)interpreted in the Henry case (Henry v. Sup. Ct. (2008) 160 Cal.App.4th 440) and usually (mis)characterized by the defense. Of course, the PI defendants often will point to medical defendants or medical empty chairs to avoid blame altogether. At other times, you will be enticed to add medical wrongdoers to your case. You should generally quash these impulses to add medical defendants. It often behooves you to avoid having medical defendants, particularly if they are MICRA-qualifying medical defendants. However, it takes substantial prospective analysis and planning to avoid creating viable empty chairs, being forced into a MICRA situation unnecessarily, and to avoid medical causation arguments that may obviate totally the personal-injury claim (e.g., as a superseding cause). At other times, however, the facts will be such that the case will fail unless it is primarily a medical malpractice case. This usually occurs when there is weak liability or weak damage availability against the PI defendants (e.g., an automobile accident with no insurance coverage for the PI defendant). Making these decisions early in your handling of the case is essential to 56 — The Advocate Magazine

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avoiding litigation catastrophes. The best decisions require an ability to recognize the potential liability issues and having knowledge of how to protect and strengthen the personal injury liability aspects of the case as necessary and appropriate. It also requires knowledge of multiple areas of law to enable you to maximize and protect your case’s damages.

Liability issues

There are innumerable ways that health-care providers become a part of a PI case. As to becoming potential defendants, there are two common scenarios. First, the PI defendant may attempt to blame a provider treating the plaintiff before the incident for a prior health condition. Our firm recently had a case where a 40-year-old man with a preexisting heart condition had a cardiac arrest while playing basketball in a health-fitness facility. As often occurs, the defense in that case pointed at the previouslytreating cardiologist for inappropriately treating the heart condition. Second, and far more commonly, PI defendants seek to place blame on subsequent treating medical providers (treaters). Almost all instances of serious injury require medical care; whenever possible, the original-wrongdoing PI defendants will seek to attach blame to the subsequent providers. The shrewd PI defense counsel often will claim that prior or subsequent medical care has broken the chain of causation. This is particularly true when the medical condition precedes the personalinjury tort. It also occurs when, arguably, there is egregious care, which the PI defendants will seek to portray as a supervening cause. It is in your and your client’s best interest to avoid making claims against these prior or subsequent treating

medical providers. Shrewd PI defense attorneys may use a plaintiff ’s claims against these defendants, and even a plaintiff ’s complaint that includes medical claims, to argue the extreme or obvious nature of the malpractice, using the complaint’s advocacy language to assert the case was sufficiently egregious to be a supervening cause. It will typically seem appealing to pursue claims against apparently wrongdoing medical practitioners. However, there are numerous advantages to refraining from doing so. Besides avoiding the harsh effects of MICRA and Prop 51, these advantages include: (1) avoiding multiple defense experts on liability and causation; (2) having greater ability to use the inculpated and more subsequent medical practitioners to undermine the PI defendants’ liability theories and support plaintiff ’s theories; and (3) having as your opponents less medicallysophisticated defense attorneys, and thereby more poorly prepared defense medical experts. The decision on whether to bring in medical defendants requires early strategic planning. Even if you forego doing so, defense counsel may always crossclaim or merely point to the empty chair. Early decision-making on your part not only will enable you to propound effective discovery to limit defense counsel’s ability to lay blame on the medical providers, but will also enable you to obtain more favorable testimony from the medical providers.

Protecting and strengthening your liability case

There are numerous methodologies available to strengthen the liability case against PI defendants and to minimize the strength of the case against potential medical defendants.

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First, use the natural tendencies of prior and subsequent treaters to defend themselves to strengthen your case. There is little doubt you can persuade potential medical defendants

whom you have not named to save face or cover their backsides while minimizing the wrongdoing and undermine causation regarding their own conduct.

These treaters will help identify issues and already will be friendly with prior or more subsequent treaters. Such treaters are generally from the same institution or are in some way aligned with the caregivers at which the PI defendants are pointing. For example, a cardiologist who works primarily at a particular hospital will almost invariably be glad to help defend an emergency room doctor, ICU doctor, or nurses from the same institution. As a bonus, you will get the opportunity to see just how easy medicalmalpractice defense attorneys have it. Next, you can take advantage of the relative lack of sophistication, particularly medical sophistication, of the PI defense attorneys compared to med-mal defense attorneys. You can further this advantage by consulting with experienced plaintiff med-mal attorneys or even friendly med-mal defense attorneys. They will be able to spot the issues for you, obtain superior medical experts, and likely be familiar with any opposing experts that the PI defendants eventually designate. They can enable you to prepare your own medical experts more effectively. More importantly, early on they can help you analyze the strengths and weaknesses of your medical case versus your personal-injury case. This assistance can range from analyzing medical records to identifying the proper subsequent treaters and type of medical experts with whom you will need to consult. Furthermore, they can assist you in propounding discovery that will allow you to better prepare your rebuttals to the crossclaims/empty-chair allegations by the PI defendants or, alternatively, to support a summary judgment motion you can bring to have the case thrown out against the medical defendants. Additionally, they can help you convey complex medical issues to the jury.

Protecting and enhancing damages in a PI case: Henry issues

Whether or not medical wrongdoers are actually named, if they are even remotely subject to liability claims, the PI 58 — The Advocate Magazine

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defendants almost certainly will attempt to point in their direction. The primary reason for doing so, even against unnamed defendants, stems from the

effects of Proposition 51 as interpreted by Henry. According to the defense interpretation, this case stands for the propositions

that: (1) fault will be allocated between the initial personal injury tortfeasor and the subsequent medical malpractice tortfeasor; and (2) noneconomic damages will be apportioned according to that allocation of fault. So applied, Henry has two potentially devastating effects on your client’s damages. First, this could be a serious reduction of the noneconomic damages by the percentage of fault attributable to the implicated health-care providers. Second, that allocated amount will be zero to your client if the medical wrongdoers are not in the case, and reduced by MICRA to $250,000 if they are. For example, imagine a situation in which a jury awarded $5 million in noneconomic damages for a catastrophic, life-altering injury, such as quadriplegia. Further assume that the jury allocated 80 percent fault to a MICRA-qualifying medical defendant. In that situation, the damages would be reduced to one-quarter of what the jury awarded, even if the medical defendants are in the case (less if they are not). The PI defendant would be responsible for only $1 million of the noneconomic damages (20 percent of the $5 million), and the $4 million for which the medical defendant was responsible would be cut to $250,000 by operation of law. Fortunately, the Henry holding and its application, and therefore its adverse effects, are far from clear. Although its superficial holding reiterates the requirement of Civil Code section 1431.2 that there be several rather than joint liability for noneconomic damages (meaning each defendant is liable for noneconomic damages only to the degree of that defendant’s fault), Henry provides more questions than answers. The Henry “holding” seems mostly an evidentiary rule, allowing evidence of fault of the subsequent medical tortfeasor to be introduced. However, the entire concept of allocation of fault to the subsequent medical wrongdoer is based on a rarely existing distinction. Proper preparation should permit avoiding application of Henry, or at least will minimize its harm in most situations.

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The problem with the Henry analysis is that it is based on two constructs that are extremely dubious in the real world. First, the ruling speaks with a “forked tongue.” It simultaneously states there can be allocation of fault (and therefore damages) to the subsequent medical provider while recognizing the wellestablished law that clearly indicates 100 percent of the fault is attributable to the original tortfeasor so long as the chain of causation from the original tortfeasor’s act is unbroken. Second, all allocation is based upon the rare and suspect premise of clearly divisible components of the injury. The Henry court recognized that “[t]raditional California tort law holds a tortfeasor liable not only for the victim’s original personal injuries but also for any

aggravation caused by subsequent medical treatment, provided the injured party exercised reasonable care in obtaining the medical treatment.” (Henry, 160 Cal.App.4th at 445.) It cited the seminal California Supreme Court case, Ash v. Mortensen (1944) 24 Cal.2d 654: “It is settled that where one who has suffered personal injuries by reasons of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him liable therefore.” (Henry, 160 Cal.App.4th at 450-51.) “The original tortfeasor’s liability for enhanced injury suffered during medical treatment

is not limited to additional harm caused by negligence. If death resulted from a risk inherent in the medical treatment reasonably required to cure the injuries caused by the accident, [the original tortfeasors] would be liable irrespective of whether such treatment was rendered in a proper or negligent manner.” (Id. at n. 6.) Moreover, “the chain of causation set in motion by the original tort remains unbroken” whether the additional harm results from the negligence of doctors or hospitals or from a risk inherent in the necessary medical care. (Ibid.) Henry’s superficially frightening (for plaintiffs) holding has two gaping holes through which plaintiffs should be able to drive their liability Mack trucks. First, 100 percent of fault is attributable to the

Medical Care continues

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original tortfeasor. Even if fault is “allocated” to a subsequent tortfeasor, that does not obviate or reduce the 100 percent fault of the original tortfeasor. The Henry court recognized its ruling was rooted solely in the fact that section 1431.2 was intended to “remedy the inequity resulting from holding a party bearing only a fraction of the fault financially responsible for the entirety of damages.” (Id. at 458-59.) This notion has little application to an original tortfeasor who is responsible for all the harm, and the Henry court conceded that, even in the situation before it, the original personal-injury tortfeasor was responsible for the damages attributable to the allegedly negligent subsequent medical treatment. (Id. at n. 9.) Second, by its terms, the holding in Henry applies to only a very limited situation, and one which is more imaginary than ever real. It applies only when the aggravation of the injury “can in fact be divided by causation into distinct component parts . . . [then] liability for each indivisible component part should be considered separately . . . [and] is properly apportioned.” (Id. at 455.) To the extent this ever occurs, it has no relevance to the overwhelming preponderance of the cases. As the court conceded, there is joint liability and responsibility, and therefore no “indivisible component” when the harm results from a risk inherent in the treatment, whether or not negligent, particularly when the treatment was necessary. Rare is the complication not known to occur during any significant procedure; it is often not an acceptable complication, which may make its occurrence negligent but would not make it susceptible to Henry allocation. Henry similarly would not apply where the negligence simply failed to fix a problem created by the original tortfeasor. That is, if the harm would have occurred had no treatment been given, it would make little sense to apply any allocation of fault. Indeed, it seems completely absurd that the original tortfeasor

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Medical Care — continued could better escape responsibility when the plaintiff sought subsequent medical care than when no care was sought at all, if pursuing subsequent medical care was reasonable (as it invariably will be held to be for any significant injury). Furthermore, the Henry court concedes that its holding is inapplicable in situations where liability is not based on comparative fault, because there is nothing to compare. This includes claims ranging from vicarious liability, conspiracy, to violation of a statute by the original tortfeasor, to strict liability. (Id., at 457-58; see also Marina Emergency Medical Group, supra, 184 Cal.App.4th at 440.) Henry’s requirement that the subsequent injury be separate and divisible from the prior PI injury creates two scenarios you can use to your advantage. The first scenario involves a looming empty chair from a subsequent provider not being named as a defendant. In that circumstance, the unnamed provider will almost certainly say the subsequent injury is not separate from the injury the PI defendant caused. This undermines Henry’s application and would likely preclude the PI defendants from pursuing a cross-claim against the subsequent provider. Under the second scenario, if a subsequent provider is named as a defendant, the PI defendant must testify not only that the subsequent provider was negligent, but also that the subsequent provider’s negligence was completely causative of a separate, divisible injury. If you have economic damages to justify pursuing the claim against the subsequent provider, this situation could be extremely advantageous because your case against the subsequent provider is handed to you on a silver platter. Successfully combatting Henry consists of understanding Henry’s limitations and propounding the proper discovery and obtaining the proper experts to obviate its narrow holding. If the case goes to trial, these efforts should be followed with properly briefing the court

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on Henry’s limited holdings and related matters. As to discovery, it is worthwhile to force finger-pointing early through form

and special interrogatories. If there has been no cross-claim by the original tortfeasor, early discovery can be powerful. If the original tortfeasor answers with true

finger-pointing, it will make it easy to get the subsequently alleged wrongdoing treaters and any treaters thereafter on your side. If the original tortfeasor avoids finger-pointing, it should allow a successful summary judgment motion on your part to eliminate the medical defendants. If they oppose the summary judgment, at the worst, you have a true battle between defendants. If there has been a cross-claim against health-care providers, discovery can enable you to eliminate the crossdefendants from the case. Specifically, if the PI lawyers do not set forth the basis for their affirmative defense, there should be an opportunity to invite a summary judgment motion from the medical defendants while at the same time befriending them. Even if the summary judgment motion does not prevail, it will permit a nominal settlement with the medical defendants. If that is granted by the court, and good faith is upheld (as it almost certainly will be), this will prevent the non-settling original tortfeasor from utilizing the benefits of Henry, even if they otherwise could have shown a distinct injury caused by the subsequent tortfeasor. This is because non-settling defendants cannot use Proposition 51 to reduce their non-economic damages. (Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847; Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 275.

Seek testimony from treaters

It is also worthwhile to seek expert testimony, particularly that of the implicated and subsequent treaters, on the necessity of the medical procedures utilized. Both the experts and vast literature will support almost any complication as a known (even if unacceptable) risk of the procedure. Similarly, treaters, even subsequent to the alleged medical wrongdoing, will almost always be willing and able to testify that the injury cannot “be divided by causation into distinct component parts.” These tactics together should generally obviate any attempt at a Henry damages’ reduction.

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If by the time of trial there has been a cross-complaint or the specter of the empty chair still looms large, we suggest a trial brief be submitted on the Henry issues. This brief should explain the limited application of Henry. It must also explain this is an affirmative defense and that the defendant has burden of proving this is a distinct additional injury. This burden is one the defendants rarely will be able to meet. The brief to the court should also address a problem likely to arise at trial. The CACI verdict form question allocating fault includes a “total” of fault at 100 percent. You must explain to the court that 100 percent total is not meaningful when the original tortfeasor is liable for 100 percent of the harm, even

if the subsequent tortfeasor also is liable for some harm. If the court is hesitant to modify the verdict form because of inherent antipathy towards altering anything CACI, point out that CACI 3929, “Subsequent Medical Treatment,” provides that the original tortfeasor is “responsible for any additional harm resulting from the acts of others in providing aid…even if those acts were negligently performed.” Point out this was cited favorably by Henry. Further, proper preparation for the deposition of the original tortfeasor’s experts will go far in eliminating a Henry allocation. It is rare for a defense expert to testify willingly that a result does not occur but for negligence or that the injuries are related. At worst, they have

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MARCH 2014

handed you the medical defendants on a platter. The bottom line is you need to convince the court of the truth of the Henry holding. First, it is primarily an evidentiary rule and not an instruction to allocate damages except in the most limited of circumstances. Further, there’s no reason to believe that such circumstances exist in your case.

Avoiding MICRA

There are many reasons to avoid MICRA besides the obvious cap on non-economic damages. Not as reviled, but perhaps even more problematic, is the abrogation of the collateral source rule set forth in Civil Code setion 3333.1, and the right of the defendant to demand installment payments for verdicts over $50,000 in future damages and have any remainder revert back to the defendants in the event of the injured party’s death as set forth in Code of Civil Procedure section 667.7. It is also much more difficult to get punitive damages under MICRA, and there is a ridiculously low fee structure, severely limiting the attorney’s fees on the already extremely limited recovery. MICRA only becomes important when a MICRA-qualified defendant is indeed brought into the case. Pre-existing knowledge of the methods and likelihood of avoiding the application of MICRA is intimately entwined with one’s decision regarding whether to bring suspected medical wrongdoers into the PI case. Consider the following general approach to arguing the non-applicability of MICRA: First, MICRA does not completely abrogate the common law for medical cases. Rather, MICRA was a legislative compromise setting forth limited statutory exceptions to the common law. It protects only limited wrongdoers (“health-care providers”) and limited wrongs (“professional negligence”), both of which are statutorily defined and caselimited. Second, MICRA is an affirmative defense. The defendant claiming MICRA

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protection has the burden of proving that (1) it is indeed a MICRA-qualified defendant; and (2) its wrongdoing is MICRA-protected conduct. A defendant does not receive the benefits of MICRA just because the case sounds in medical malpractice. To qualify as a MICRA defendant, the “health-care provider” must be licensed or certified under various sections of the Business and Professions Code or the Health and Safety Code. This does not include most clerical staff, unlicensed or uncertified personnel (even if holding themselves out as licensed or certified), or various outsource personnel. Nor does it cover entities that employ health-care providers, although they may gain such protection through that employment if the only claim against the entity is one of vicarious liability. (Lathrop v. Healthcare Partners (2004) 114 Cal App.4th 1412.) Otherwise extending MICRA protection to entities that employ healthcare providers is absurd, as shown by the fact that doing so would provide MICRA protection to pharmaceutical companies, drug stores, insurance companies and even my law firm. Such claims have been rejected since the enactment of MICRA. (See, e.g., Frederick v. Calvio Pharmaceutical (1979) 89 Cal.App.3d 49.) Furthermore, if you can bring in a defendant HMO rather than merely its physicians or nurses, no MICRA protection applies. Civil Code section 3428, subdivision (c) and its legislative history clearly indicate the Legislature’s specific contrary intent that, without qualification, health-care service plans and managed-care entities are not “health-care providers” within MICRA and get no MICRA protection for their wrongdoings as HMOs. It is important to note the broad statutory definition of a health-care service plan. It includes “any person who undertakes to arrange for the provision of health-care services . . . in return for a prepaid or periodic charge.” (Health &

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Medical Care — continued Saf.Code, § 1345, subd.(f).) Moreover, the burden is on the defendant claiming MICRA to prove it is exempt from any limitations under these statutes, including the exemption from MICRA. (See Health & Saf. Code, §1343.3.) To avoid the application of MICRA, the HMO, managed-care entity, or medical business must have wrongdoing other than vicarious liability. This generally can be found readily through various statutes and case law setting forth non-delegable duties of such entities. These legal bases include the doctrine of non-delegable duties for public licensees. (See California Assoc. of Health Facilities v. Dept. of Health Services (1997) 16 Cal.4th 284 [addressing non-delegability of obligations under a personal health services contract]; see also, e.g., Newman Co., Inc. v. Nero (1973) 31 Cal.App.3d 490, 495.) Statutory duties of health-care service plans and managed-care entities are set forth in Health and Safety Code section 1367, et seq., and 28 California Code of Regulations section 1300.80, et seq. In order to obtain MICRA protection, a MICRA-qualifying health-care provider must also show that the wrongful conduct falls within the ambit of MICRA. There are two primary tests for determining whether the challenged conduct is within MICRA’s purview. The first is statutory, specifically asking whether the conduct falls “within the scope of services for which the provider is licensed.” (Civ.Code, § 3333.2, subd. (c)(2).) The case law arguably adds another restriction, namely that the professional negligence be “mere” negligence and not more egregious or intentional conduct. One can avoid the application of MICRA under the first test by finding causes of action that fall outside the scope of licensed services. Such claims include: (1) fraud, ranging from defrauding the patient to performing ghost surgery; (2) stealing from the patient during medical care (e.g., stealing eggs in fertility clinics, stealing cell lines, etc.

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(see, e.g., Moore v. Regents of Univ. of California (1990) 51 Cal.3d 120); and (3) decisions a provider makes for economic gain rather than for the medical benefit

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ments for obstetric care resulting in inadequate care, declining known necessary interventions, inappropriately discharging or transferring a patient for economic reasons, providing inadequate staffing levels for economic reasons, or ratcheting down care using lower level providers for economic reasons). This theory also supports excluding “ordinary” (non-medical) negligence committed by MICRA-qualifying defendants. The majority of cases (but not all) have held that mundane, universal activities, such as dropping a patient from a gurney, are properly characterized as having occurred outside the scope of services for which the health-provider was licensed. (See, e.g., Gopaul v. Herrick Memorial Hosp. (1974) 38 Cal.App.3d 1002; Andrea N. v. Laurelwood Convalescent Hosp. (1993) 18 Cal.App.4th 1698.) The mother lode for the other theory of conduct beyond the MICRA’s purview – conduct constituting more than “mere negligence” – can be found in the body of elder-abuse cases. Indeed, the separate, non-MICRA claim for elder abuse was based on the fact that the acts prescribed by the elder abuse statute constituted culpability greater than “professional negligence.” (Delaney v. Baker (1999) 20 Cal.4th 23.) Otherwise stated, “health-care providers are not exempt from liability for reckless neglect simply because the cause of action arises from the rendition of health services,” according to another elder-abuse case. (Mack v. Soung (2000) 80 Cal.App.4th 966, 97.) Yet another elder-abuse case found that MICRA was not applicable for reckless, oppressive, fraudulent or malicious conduct. (Guardian North Bay, Inc. v. Sup. Ct. (2001) 94 Cal.App.4th 963.) By the same token, intentional torts are generally seen to be outside the scope of MICRA. Battery clearly is now considered beyond MICRA’s ambit. (See Perry v. Shaw (2001) 88 Cal.App.4th 658.) If you are stuck in a situation where MICRA is held to apply, there are numerous ways to take the bite out of MICRA, though the details are largely beyond the scope of this article. There

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Members Make get connected today

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The Advocate Magazine — 77


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are, for example, numerous ways to limit the admission of collateral sources even under MICRA; numerous ways to multiply the $250,000 cap in appropriate cases; and ways to strongly discourage and limit the use of periodic payments.

Maximizing economic damages

If the PI defendant believes it will get a significant proportion of the fault attributed to the medical defendants, or if a medical defendant is joined, the defense may engage in tactics designed to decrease economic damages, even at the risk of raising non-economic damages. There are numerous methods to combat such attempts. These methods are noteworthy not only because they increase the value of medical claims across the board, but also because they allow for better evaluation of potential cases against medical defendants. In Henry scenarios, for example, if a subsequent provider is named as a defendant, you may have the opportunity to use Henry to your advantage by having the PI defendant help build your case against the subsequent provider. MICRA will likely apply to limit non-economic damages, so you have to be realistic and confident about the economicdamages potentially recoverable from the medical defendant. Commonly, the defendants will argue for an unreasonably short life

expectancy, whereas in straight personal injury cases, a defendant will be hesitant to pronounce so boldly that they did not merely maim a child or young adult but have effectively killed them in short order. In medical malpractice cases, this presents an imprimatur of truth because the jury usually is not allowed to know of the cap and the attempted shifting away from economic damages. However, if there is a non-MICRA qualified defendant that will receive a large proportion of the blame, defendants rarely will be so brazen as to claim they caused early death. There are numerous ways to combat such shortened life-expectancy arguments. These include recognizing and arguing the victim’s actual non-vegetative condition, motions precluding lifeexpectancy testimony or foregoing the right to periodicize future damages, and combatting new, voguish defense statistical arguments using medical statisticians as experts. There are also numerous methods for demonstrating the increased needs of severely injured people. For example, paraplegics often require minimal medical care during their younger years; however, as their age increases, the normal aging of the shoulders increases and is accelerated because of the greater wear caused by one’s arms serving as both

Medical Care continues

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arms and legs. When that occurs, a paraplegic effectively becomes a quadriplegic, requiring attendant care 16 to 24 hours per day. Similarly, although the average (with emphasis on average) medical expert sets forth what is medically necessary, they usually are reporting their experience as to what the insurance has traditionally reimbursed, rather than what is needed to make a plaintiff whole. Looking at the care Christopher Reeve received or that is available for the seriously injured at places like Abilities Expo, strongly supports the need for extensive (and costly) devices, therapies, and treatments available to the seriously injured if there are sufficient funds. There are also numerous ways to explain to a jury why a far cheaper 24-hour live-in adult or CNA is simply

not adequate for a severely injured person and why hourly care is needed. Moreover, often more costly LVN care is required by law. The more effective your damages’ experts, the easier it is to present persuasive evidence of these greater needs and life expectancy. Such testimony usually is simply beyond the scope of most nurse life-care planners. There are, however, experts in rehabilitative medicine and in resources for the severely injured that are far more persuasive. Some are particularly adept at explaining how the increased care not only is necessary but also is intimately tied to life expectancy. Steven Heimberg, M.D. is a physician and an attorney, and is a recipient of CAALA’s Trial Lawyer of the Year award.

Because of his medical background, he is regularly asked to obtain justice for victims of catastrophic personal injuries with medicallyrelated issues. The rest of his practice is devoted to life-altering personal injuries, medical malpractice and HMO misconduct. In addition to having been selected by Lawdragon as a Top 500 Litigator in America and a Top 500 Plaintiff Attorney in America, he also has been selected six straight years as a Top 100 California Trial attorney, a Top 100 Southern California Super Lawyer, and a Best Lawyer in America. US News and World Report ranks his firm in their “top tier.” He is a founding member of Ralph’s Riders, California’s premier support organization for the spinal cord disabled, and was recognized recently as its Person of the Year.

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Brad Avrit

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The use of experts in the premises-liability case Many premises cases are losers at trial, but the right expert can improve your odds One of the most difficult claims to win at trial is a slip/trip-and-fall case. The defense wins more than 75 percent of the cases that go to trial. Therefore, before you decide to take a case, you must properly investigate and evaluate the liability issues. First, you must know the law: An individual person or entities that own and control property are obligated to keep it reasonably free of dangerous conditions and to warn of those dangerous conditions. This includes a duty to make periodic inspections. Knowledge of a dangerous condition is called actual knowledge. Whether a dangerous condition existed long enough for the reasonably prudent person to have discovered it is known as constructive knowledge. Premises liability cases have a “Basic Duty of Care”. This is set out in CACI 1001 which states as follows: In deciding whether the defendants used reasonable care, you may consider, among other factors, the following:

(a) The location of the property; (b)The likelihood that someone would come on the property in the same manner as Plaintiff; (c)The likelihood of harm; (d)The probable seriousness of such harm; (e)Whether Defendant(s) knew or should have known of the condition that created the risk of harm; (f)The difficulty of protecting against the risk of such harm; and (g)The extent of Defendant(s) control over the condition that created the risk of harm; and (h)Other relevant factor(s). Unsafe Conditions are described in CACI 1003 as follows: Defendant was negligent in the use or maintenance of the property if: (1.) A condition on the property created an unreasonable risk of harm; (2.) Defendant(s) knew or, through the exercise of reasonable care, should have known about it; and (3.) Defendant(s) failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.

Slip/trip-and-fall requires an expert

There are several reasons to hire an expert on a slip/trip-and-fall case. The jury is biased against you before you even start your case. They believe that the plaintiff should have been aware of what is taking place around him or her. He or she should have seen the condition. It was open and obvious. The defense will argue that the floor had a liquid substance on it that was obvious. The sidewalk has a crack that should have been seen if the client was paying attention. You must be aware that in many instances, the land owner, etc., will take remedial measures to correct a dangerous condition. This can cause the condition of the premises to change. 82 — The Advocate Magazine

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Although subsequent remedial measures to change the dangerous condition so that there will be no future accidents and injuries are not admissible at trial (with few exceptions), waiting to visit the scene can prevent you from winning your case since you do not have visual evidence of the dangerous condition as it existed at the time of the accident. The physical condition of the defect must be the major contributing factor of the fall. It could be a defect in a sidewalk such as a crack or raised slab, water on the floor, oil on a parking lot, debris on a walkway, etc. If the physical condition is not present for your inspection and no evidence of it has been preserved, or if the client does not know what caused the fall, proceeding with the case may be imprudent.

Experts

Experts are, more often than not, crucial to proving your case. The expert will assist you in deciding whether your theory of liability is viable. An expert can inform you about such issues as community standards, building and safety codes and industry norms. They can educate you about issues that must be addressed to prevail in the case and make you more confident about your decision to proceed. Hiring the expert at the right time is important; ideally before the condition that caused the fall can be changed. An expert can evaluate the accident scene for code violations such as height and width of steps. Does the code require guardrails? Does the height of the guardrail indicate a dangerous condition as provided in the building codes? Did the person descending steps fall forward or backwards? Did the individual misstep or did their foot give out due to a slippery step? The bio-mechanical expert can usually provide answers to many of these questions.


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Experts are expensive and it is important to obtain the right type of expert to evaluate a case. This requires you personally meeting with the expert at the accident site and, if necessary, having the client there as well. How do you know what type of expert is required? If you have not worked with a particular accident reconstructionist or safety engineer before, request a copy of his/her C.V. It should outline the expert’s training and educational background in addition to particular certifications and licensing, helping you match the expert to the particular case. Let’s take a trip-and-fall case as an example: A safety engineer can test the accident area to see if it was likely slippery. The mechanism generally used is a Slip Resistance Tester, known as a Tribometer. Tribology is the “study of the inter-actions of sliding surfaces.” It includes three subjects: friction, wear, and lubrication. A Certified Tribologist is preferable but not an absolute requirement. The area of a fall should be tested with conditions as similar as possible to

those that existed at the time of the fall. This should include the following: (1.) Same surface; (2.) Same type or amount of water or liquid on the surface; (3.) Same time of day if outside lighting is an issue; (4.) Same time of year if outside lighting is an issue; (5.) Same artificial lighting. Safety Engineering as defined under the Code of Regulations, Title 16, Div. 5 Article 1 §404 is as follows: Safety engineering is that branch of professional engineering which requires such education and experience as is necessary to understand the engineering principles essential to the identification, elimination and control of hazards to people and property; and requires the ability to apply this knowledge to the development, analysis, production, construction, testing and utilization of systems, products, procedures and standards in order to eliminate or optimally control hazards. In summary, there is no absolute right time at which to hire an expert.

Because of the expense involved, you should evaluate a potential recovery to see if the expense is worth the risk. If the case is worth your time, then hiring the right expert at the right time can make or break it. Robert S. Fink is a Past President of CAALA and is a longtime Board of Governors member. He frequently lectures for both Consumer Attorneys Association of Los Angeles (CAALA) and Consumer Attorneys of California (CAOC). Mr. Fink has been practicing law for over twenty years and has tried numerous cases. He frequently acts as both arbitrator and mediator in civil litigation matters and is a member of the Superior Court’s Alternative Dispute Resolution Committee. Mr. Fink received his J.D. from Whittier College of Law in 1975. Brad Avrit, PE is President of WEXCO International Corporation, serving attorneys since 1969 with expert witness services on construction, safety, and accident reconstruction. He is a licensed civil engineer, practicing safety engineer and certified tribometrist who has practiced for over 18 years as an engineering expert witness.

MARCH 2014

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Alan I. Schimmel

Building blocks: Construction defects 101 The complexity, statute-of-limitation issues and high cost may explain why defect cases have become such a specialty Few areas of law have the potential to be as problematic for those who lack specific experience in its practice as construction-defect law. There is more to successfully navigating a constructiondefect case than simply taking the builder to court based on the complaints of homeowners or tenants. Beginning a construction-defect case without the proper preparation will invariably lead to confusion, frustration and unnecessary expenditure of time and money. It is essential to understand the statutes governing this area of law before filing a lawsuit, and to ask for help from more experienced construction-defect attorneys if necessary.

Construction defects 101

Construction defects occur when a home or dwelling has not been designed or constructed in a reasonably workmanlike manner. Although some defects may seem benign, they can lead to enormous problems down the road, necessitating expensive, time-consuming and disruptive repairs, or even rendering the building completely uninhabitable. There are two different types of construction defects: Patent and latent. Patent construction defects are problems that can be plainly seen and identified, such as a leaky roof, cracked stucco, or issues with the building’s plumbing or electrical systems. Far more insidious are latent construction defects, which are hidden from the untrained eye. Latent defects may include damage to a home’s foundation or water from unseen leaks hiding within its walls. Both patent and latent defects are subject to their own individual statutes regarding the timeframe in which homeowners have to bring lawsuits against builders before they are legally prohibited from doing so.

Water intrusion, the number one issue The most common type of construction defect cited in lawsuits is water 84 — The Advocate Magazine

MARCH 2014

intrusion, in which water infiltrates the building’s structure via windows, doors or perforations in the building’s roof. This is usually due to the use of poor building materials or a failure on the part of the builder to utilize a proper waterproofing membrane. Water intrusion can quickly escalate from a minor problem to a crisis threatening the integrity of the entire structure. The second most common type of defect is soil movement, which is a particular problem for homes situated on slopes or poorly compacted fill. Soil movement can be attributed to poor planning or construction errors, such as a shoddy foundation lacking in proper reinforcement. In any event, soil movement, like water intrusion, could ultimately destroy a home’s value, and the homeowner may not realize there’s a problem until it is too late.

The all-important statutes of limitation

In California, construction-defect cases are subject to very specific statutes of limitation. This leaves a relatively small window of time in which property owners are able to pursue legal action against builders for faulty construction. For patent defects, the statutory period is four years from the time of construction, and for latent defects, ten years.

Why is the number of constructiondefect cases rising?

Construction-defect cases in California are expected to rise in the coming years due to several factors. First, the housing construction boom of the mid-2000s means many homes that were newly built in the last decade are now nearing the end of the statute for filing cases involving latent defects. Since many of these defects take years to surface, homeowners may only now be realizing the extent of resulting structural damage to their homes, and as a result, their

window of opportunity is starting to close. Another contributing factor is the urban renewal currently underway in downtown Los Angeles and other urban areas across the state. The trend is for older buildings to be rehabbed and renovated and then sold as “luxury” housing, including condominiums and lofts; however, renovations present builders with the opportunity to implement shortcuts. The result is faulty construction. All too frequently, buildings are outfitted with modern updates and amenities, but the builder fails to adequately integrate the new to the old building components. This can lead to failures with plumbing, roof and structural components, to name a few. Finally, while property sellers are required to disclose all known defects to potential buyers before a sale, those who purchased repossessed or foreclosed properties during the recent economic downturn may not have been forewarned of such defects, since banks are exempt from this disclosure requirement.

Pre-litigation requirements in construction-defect cases

Construction-defect cases should be approached differently depending on several factors, including whether or not there is a Homeowner’s Association (HOA) involved. There is one set of rules for a single home constructed by a builder and yet another set of rules for groups of homes or condominiums that have common areas and are governed by an HOA. When there is an HOA involved, the property defects may be governed by the Calderon Act (Civ. Code, § 1375 et seq.), a set of rules that applies to constructiondefect cases for multi-residential buildings or communities with a central association. The Calderon Act, which has been in play for nearly 20 years, sets forth a specific process for construction


efect

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defects, including rules for pre-litigation, mediation and litigation. If you are handling a case governed by the Calderon Act, you may not file a lawsuit until you fulfill your pre-litigation obligations under the code. Single-family-home defect cases that do not involve an HOA are governed by the Right to Repair Act (Civ.Code, § 900). Like Calderon, the Right to Repair Act also involves a pre-litigation process where homeowners must provide written notice of the defects to the builder, allowing developers the opportunity to assess the property and attempt repairs as they see fit before construction defect litigation may proceed. If the builder fails to comply with any of the pre-litigation procedures, the homeowner is then free to file suit, but ultimately this prelitigation procedure is an unavoidable step in the process of mounting a construction-defect case. Attorneys must familiarize themselves with these rules, deadlines and statutes in order to protect the interests of their client and see that the developer is held accountable.

Common pitfalls in constructiondefect cases Once you have overcome the prelitigation hurdles and a lawsuit for defects has been filed, you may find that effectively litigating the case can still be a dauntingly difficult prospect. One of the most common mistakes attorneys make is not focusing on the value of their experts’ opinions. With construction defects, your case is only as strong as your experts and their testimony. Homeowner complaints are generally not enough to win a case, particularly when defects involve technical building standards. It is therefore vital to utilize credible experts with professional opinions based on real-world construction experience to validate defect claims. Selecting an expert is not easy, and the best expert-attorney relationships are nurtured over time. Attorneys without established ties to trustworthy construction professional experts may wish to seek referrals from professional

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Building Blocks — continued

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organizations or from colleagues with experience in this practice area and established relationships with expert witnesses. Insurance coverage issues are another common roadblock that many litigators encounter on the road to winning a construction-defect case. Failing to grasp coverage issues means attorneys may not know how the damages are going to be paid for. Not understanding concepts like resulting damage and the cause-andeffect relationship between defective building components and physical injury to tangible property can negatively impact the outcome of the case for settlement or judgment collection purposes. Attorneys must also make sure they are suing the right people or entities. The major players are typically the developer, the builder/general contractor, a few of the key subcontractors. Using these potential defendants as a starting point, as opposed to suing every single subcontractor on the project, will help conserve resources and control the litigation. At your earliest opportunity, conduct thorough discovery so that specifically targeted litigation tactics can be used. Find out as much about your opponent as you can. The difference between taking-on a well-known developer versus a spec builder who has only constructed a handful of homes is considerable. The better you understand your opponents, the more likely you will be able to successfully resolve the case for your clients. Many construction-defect cases become mired in costs that the attorney failed to anticipate and has agreed to advance. Resolution of constructiondefect cases is almost never swift and they tend to be very expensive. Funding construction-defect cases usually does not fall to the plaintiff, so any lawyer looking to move into this practice area would do well to have a war chest of funds to draw from in order to pay experts, conduct discovery, assess the property and address all of the various expenses associated with the case, including expert depositions. Attorneys should understand that they will likely be working on a contingency basis, and should consider


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whether or not the potential payout is greater than the costs they will incur. It hardly makes sense to spend $500,000 on a case with a potential win of only $1 million, so be honest about your financial commitments and accept cases accordingly.

Strength In numbers

For those lawyers who do choose to take on these cases and forge bravely into the labyrinth of construction-defect law, remember there is no shame in asking for help from attorneys who focus on this practice area. Joint ventures can be beneficial and can considerably lessen the burden of a complex case. Options include simply asking colleagues for friendly advice, or approaching other attorneys outright to suggest a joint-venture relationship in which the two firms collaborate on the case to see it through from filing to resolution. In summary, the best strategy for handling these cases includes familiarizing yourself with the statutory requirements, conducting thorough due diligence upfront, honestly assessing whether your firm can handle the case financially, choosing the best experts and seeking guidance from other attorneys whenever necessary. With a strong foundation of preparation and collaboration in place, you can successfully navigate a construction-defect case.

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Alan I. Schimmel is the Managing Partner of Schimmel & Parks, A Professional Law Corporation, a Los Angeles-based plaintiff and consumer complex civil-litigation firm. In practice for more than 30 years, he has extensive litigation experience encompassing construction defect, homeowners association, bad-faith insurance, employment and catastrophic personal injury. He received his Juris Doctor degree from Pepperdine University School of Law, his Bachelor’s degree from the University of California at Los Angeles, and he is a member of the State Bars of California and Nevada. He can be reached at aischimmel@spattorneys.com.

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Martin I. Aarons

Evaluating liability at the outset of your case Spend time on the informal but crucial case evaluation before you run off to file a case You’ll never regret the case you didn’t take. That’s why it’s always better to be over-critical of the potential case than to believe you can make it fit or that only you can turn this dog into the best in show. That’s why it’s important to be thorough in evaluating liability on any potential personal injury and employment case. In deciding whether to take a new case, a number of factors have to be evaluated: liability, damages, collectability, and likeability. As we have all heard – information is power. The process of evaluating liability is to gather as much information as possible and sifting through it to find those cases with the right mix of information. The right mix of information that makes our cases likely to survive summary judgment and, more importantly, win at trial.

Begin with the end in mind

Jury Instructions: It is essential, in all cases, to begin with the jury instructions. This is the ultimate “begin with the end” in mind. The jury instructions provide a step-by-step checklist of the basic information you need to gather to establish liability for any case. Also, read the cases cited in the user notes/sources and authorities section. This, too, will give you guidelines on the types of facts that make for good cases and those that don’t. Where to get them: Jury instructions are free! You can access the approved California CACI jury instructions free from the California courts’ Web site: http://www.courts.ca.gov/partners/317.htm. Throughout litigation, refer back to the jury instructions to make sure you have done all the discovery and gathered all the information necessary. Also, looking back at the jury instructions helps to focus efforts on litigation and what is actually needed and what is tangential. 88 — The Advocate Magazine

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Gathering information I ask all potential clients to bring all documents with them about their situation to the first in-person meeting. I send a confirming email about the meeting and in that email I list out all the various types of documents I expect to see. And I emphasize to bring it all. The things the client thinks are relevant, invariably are not. And the things that are relevant, the client may not realize their import. A case is typically in its best shape at the first client meeting, so if the liability is thin, then don’t get blinded by the damages thinking you can make a case out of it or that they will simply settle. Here are a variety of the types of information/documents I ask potential clients to bring with them to our first meeting. Medical records: In almost every personal injury case, it is essential to obtain copies of your client’s medical records. And not just the records from the date of the accident forward, but ALL of your client’s medical records going back five or even ten years. You can be sure that defense counsel is going to ask Form Interrogatory 10 series about injuries in the past and that they are going to subpoena all medical records from your client’s past. Though you may be able to prevail on a motion to quash, we should still have the records so that we know what is in them. This will give us the information needed on whether to expend energy opposing the subpoena or just handing the records over ourselves which may obviate the need for the subpoena. In certain employment cases too, like medical leave, disability/reasonable accommodation cases, or where the client is treating with a mental health practitioner, it is imperative to get the medical records first.

Where to get them: At the initial client meeting, have the client bring in whatever medical records they have. Have the client/potential client go to the facility and get the records themselves. Also, get them yourself. I use a HIPPA form and send it along with a simple letter to the facility informing them that I represent the patient at issue and to provide all medical records, bills, etc. Diagrams: When evaluating a slipand-fall or a car accident or even workplace disputes, a scene depicting the events is very helpful. In a car crash have the client/potential draw out what happened on paper. Use hot-wheels/cars to have them show you what happened. Draw out a map of the store/building and where they fell, and of what was around. Draw out a floor plan of who sits where (i.e. the harasser is right next to her and these other people sit close by and would have heard the harassment). Go to Google Maps or Google Earth or other similar sites and print out pictures of the intersection/location of the collision. These are invaluable tools that will be used throughout litigation, in mediation, and in trial. Through these diagrams a better picture and understanding of liability can be drawn. Photos: With cell phones we would expect that all clients would have photos of the accident scene − no matter what kind of personal injury case – car crashes, slip and falls, whatever. If the client has them on the cell phone, get them emailed to you immediately. Cell phones die, get dropped in toilets or lost and there goes great evidence of liability. You will be surprised however, at how many clients don’t take the right pictures, enough pictures, or any pictures at all. If this is the case, go to the scene ASAP and take the pictures yourself. Pictures of the intersection, the lighting,


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the ceiling, the floor, the surroundings, the car at the body shop, etc. This is imperative as defendants/people will fix and/or change things and the critical evidence about how things looked will forever be gone. Videos: Stores often have video surveillance. If possible, obtain these videos. MTA buses all have videos on them. Videos can be obtained from cities of intersections, from the CHP of sections of the freeway, and from neighboring business of streets as well. And from bystanders. The existence of video can be crucial in having an expert evaluate safety, in showing how things were done and/or should have been done. Often, these videos cannot be obtained until litigation, but it is key to investigate sources of possible video early on so that they can be obtained and reviewed as soon as possible – we don’t want to spend a lot of money on a case only to get video at the 11th hour that shows the plaintiff was in fact at fault. Documents: Your potential client will have a large number of documents ranging from emails to phone records, text messages, police reports, etc. Gather all the documents, not just the ones the client thinks are important, but all of them. Police reports in car accidents are especially important as they provide information about causes of accidents, witness statements, and witness contact information. Social media: Look at your clients’ Facebook and Twitter accounts. See what they have said about the event. Find out if there are other relevant posts or tweets by others involved and gather them. Employment records: Your client is entitled to a copy of her personnel file and wage records. In a personal-injury matter this may be very important damages’ information. In an employment case, these are essential documents regarding their performance, reason for termination, and investigations regarding any complaints. Was the potential client a good employee, have lots of write-ups, get lots of promotions, accolades, or complaints? Is there an arbitration agreement? The personnel file gives an insight

into some of the possible affirmative defenses and may provide crucial information for evaluating liability. Witness statements: In employment and personal-injury cases, getting the names of witnesses and their contact information from clients is important so that you can independently verify the information being provided. For example, in employment cases, getting a former co-worker to verify the harassment, discriminatory comments, or other events is imperative as current employees are unlikely to come forward out of fear of retaliation. Timeline: Having the potential client write out a timeline can be very important in all types of cases, but especially in employment cases. The more detailed the timeline, the better. I have all my clients write out a timeline and that timeline typically becomes the outline of the complaint, the outline of discovery responses, and the outline for the discovery in the case. How soon after a complaint of harassment or discrimination was the potential client fired? Over what period of time did the bad conduct occur? How severe was the conduct the potential client is complaining about? Employment cases all take place over a period of time and from the timeline, the theories of liability become clear.

Does it all fit? Once the jury instructions have been pulled and all the information has been gathered, the question becomes: Does the information meet the necessary elements to state a claim? In determining if I believe a case has a strong liability or weak liability, I ask three questions: •Does the information fit in with the law? •Does the information tell a compelling story? • Are there any glaring holes, weakness, or applicable affirmative defenses? In evaluating liability, discretion is the better part of valor. I have yet to hear about the case I turned down turning out to be a big winner and wishing I had taken it. In my mind it’s better to turn down the case with lots of question marks or the one that just doesn’t feel right than to force a square peg into a round hole. Good luck! Martin I. Aarons is the principal of The Aarons Law Firm, located in Sherman Oaks. His practice focuses on representing employees in all types of employment litigation and trials, including discrimination, harassment, and retaliation cases as well as personal injury matters. Martin is an active CAALA member and is always ready to lend a helping hand. He may be reached at maarons@aaronslawfirm.com.

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About this Issue Ibiere Seck

Editor-in-Chief

Proving your premises case before trial Evaluating the client and the case from intake through discovery A potential client calls you and says she has suffered a serious injury while lawfully on someone else’s property. You are not sure what to make of the client or of the case, but she desperately needs your help. What do you need to know before signing up the case and how do you work up your case once you have been retained?

Investigation

Screen the client The credibility, and in some cases, likability, of a plaintiff is critical to achieving a successful settlement or verdict. A case can be won or lost on how believable and personable your client is in front of a jury. Most jurors are skeptical of premises-liability cases, especially slip-and-fall cases. So, you want to assess the potential client’s credibility early and thoroughly. Keep in mind that your client’s own negligence may have contributed to the injury-producing event. For slip/trip-and-fall cases, you will want to find out what the potential client was wearing (type of shoes, prescription glasses, etc.) and whether there were any other factors that could have caused the injury. I recommend meeting your client in person to do a reenactment of how the injury occurred. You would be surprised how much you can learn from having your client show you, rather than tell you, what happened. In some cases, you’ll find that the fall could not have possibly happened as the potential client described. Preserve and demand evidence Immediately after signing up the case, send a Preservation of Evidence letter to the property owner demanding that he or she preserve all evidence related to the injury-producing event. Also request any and all video surveillance, security tapes and incident reports. Many property owners will be more than willing to provide you with evidence that points to your client’s own negligence. In 90 — The Advocate Magazine

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those cases, you can present the evidence to your client and discuss the discrepancies and/or reject the case. If the property owner refuses to respond to your requests, you can request the evidence in written discovery after filing of the lawsuit. Survey the scene Inspecting the scene where your client was injured is one of the most important things you can do in the early stages of the case. Visiting the premises, whether it be a store, a stretch of roadway, an amusement park, a commercial building or residential property, is an essential part of the case evaluation and can help you better understand how the incident occurred. Depending on your budget and the nature of the case, you may want to consider retaining an expert to assist in the scene inspection. The expert not only preserves the condition of the scene through photo documentation, but will also do a thorough analysis of how the injury-producing event may have occurred by taking measurements, evaluating light sources, and noting buildingcode violations. In most cases, you should have your client attend the scene inspection to further describe how the injury occurred. I have found that physically being at the scene with the client triggers a lot of memories for the client, making a useful way to gather additional evidence/facts that will help in proving your case. You may find that by visiting the scene, potential witnesses emerge and you are able to identify additional sources of information (such as video surveillance from the surrounding area). Research codes and regulations Identifying the codes and regulations that apply to your case can help you establish liability early on. If you are not familiar with the applicable building codes, standards and regulations, hiring an expert to assist you in determining

whether there was a violation in your case may be worthwhile. Know the law If you want to prove your case before trial, you must know the law. I was taught early on in my career to enter every case with a clear understanding of what the plaintiff will need to prove at trial. I now make it a habit to review the jury instructions for each cause of action that applies to my case. • CACI Jury Instructions The CACI Jury Instructions on premises liability provide the perfect roadmap to a successful settlement or victory at trial. You can also use the instructions as a guide when drafting your discovery and your deposition outline. The pertinent jury instruction for any premises liability case can be found in sections 1001 and 1003 of the CACI Jury Instructions. They are as follows: 1001. Basic duty of care A person who [owns/leases/occupies/ controls] property is negligent if he or she fails to use reasonable care to keep the property in reasonably safe condition. A person who [owns/lease/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. In deciding whether [name of defendant] used reasonable care, you may consider, among other factors, the following: (a) The location of the property; (b) The likelihood that someone would come on to the property in the same manner as [name of plaintiff] did; (c) the likelihood of harm; (d) The probable seriousness of such harm; (e) Whether [name of defendant] knew or should have known of the condition that created the risk of harm; (f) The difficulty of protecting against the risk of such harm; [and]


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(g) The extent of [name of defendant]’s control over the condition that created the risk of harm; [and] (h) [Other relevant factor(s).] 1003. Unsafe concealed conditions [An owner/A lessee/An occupier/One who controls the property] is responsible for an injury caused by a hidden condition if: 1. The condition created an unreasonable risk of harm; 2. The [owner/lessee/occupier/one who controls the property] knew or, through the exercise of reasonable care, should have known about it; and 3. The [owner/lessee/occupier/one who controls the property] failed to take reasonable precautions to protect against the risk of harm. [An owner/A lessee/An occupier/One who controls the property] must make reasonable inspections of the property to discover such conditions. • Civil Code (Common Carrier Strict Liability) In cases where you are dealing with a common carrier such as planes, trains, elevators/escalators in commercial buildings and amusement park rides, strict liability applies and you simply need to show that these carriers of persons were unsafe and unfit for the purposes for which they were put. Civil Code section 2100 reads: A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” Similarly, Civil Code section 2101 reads as follows: “A carrier of person for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care.

Written discovery

What you need to prove your case and how to get it To prove your premises-liability case, you will need to request certain

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Proving — continued

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documents from the defendant. Premises’ cases center around the defendant’s knowledge of an unsafe condition/hazard and the failure to eliminate or provide adequate warning of that unsafe condition/hazard. The evidence you need that will be helpful in proving your case include: 1) any video or electronic surveillance of scene; 2) photographs and diagrams of the area; 3) safety manuals; 4) any contracts between all parties (and third-party entities such as management companies and cleaning companies) regarding maintenance of premises; 5) all maintenance logs/reports; 6) all inspection logs/reports; and 7) all reports of prior incidents that were similar to your client’s case. Establishing notice Since you have the burden of proving not only the existence of a dangerous condition, but also that the owner/controller of the premises had notice (actual or constructive) of the dangerous condition prior to your client’s injury, you must be sure to request documents that establish notice. Actual notice is established when there is evidence that the owner/controller of premises created the dangerous condition. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806) You want to look for situations where an employee spills something on the floor and fails to clean it up within a reasonable amount of time or where a hazard is created when repairs are started, but not completed, and the public is exposed to that danger without being provided with adequate warning of the hazard. Constructive can be established when the owner of the premises fails to carry out regular inspection where had the inspections taken place, the hazard or dangerous condition would have been discovered (and, presumably remedied). (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) You will want to request documents pertaining to the regular inspection and maintenance of the premises.

Depositions (person most knowledgeable)

When handling a premises-liability case, you will find that the most efficient


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way to get the information you need to prove notice is through the deposition of the Person Most Knowledgeable (PMK) regarding maintenance, inspection and repair of the premises. The primary goal in taking the PMK deposition should be to get the deponent to admit that despite a desire to exercise, at the minimum, reasonable care in keeping the property in safe condition, the premises were not safe. When drafting the notice of deposition for the PMK, it is recommended that you include in that request a request for production of documents. That will ensure that the deponent arrives at the deposition with at least the documents (safety manuals, inspection logs, etc.) that you will need and will afford you the

opportunity to go over the documents with the deponent at the deposition.

Conclusion

Premises-liability cases can be complex and document intensive, but if they are handled properly from the outset, working them up can be fairly straight forward. If you conduct a thorough investigation, use the law as your guide and ask the right people the right questions, you will find yourself one step closer to achieving justice for your client. Ibiere N. Seck is a Senior Associate at The Cochran Firm in Los Angeles where her practice focuses primarily on major negligence and product liability litigation and

trial. She joined the firm in 2008 and is a graduate of Loyola Law School. She is a member of Consumer Attorneys Association of Los Angeles and Consumer Attorney of California’s Board of Governors where she serves as the Chair of the New Lawyers Committee (CAALA) and Community Service Co-Chair (CAOC). In addition, she serves on the board of the Langston Bar Association and the Los Angeles County Bar Executive Committee and is an advisory board member of Western Center on Law & Poverty and Mesereau Free Legal Clinic where she regularly volunteers and is an active committee member of the Black Women Lawyers Association of Los Angeles. In 2010, she was selected as one of Southern California Super Lawyers Rising Stars.

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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief

Appellate About Reports and cases in brief

this Issueclarity in responding to Requests for Admissions St. Mary offers St. Mary v. Superior Court Editor-in-Chief (Schellenberg)

Jeffrey Isaac Ehrlich

(2014) __ Cal.App.4th __ (6th Dist.) Who needs to know about this case: Lawyers who propound and respond to requests for admissions (RFAs) under the Discovery Act. Why it’s important: Provides valuable clarity concerning the proper means Jeffrey Isaac Ehrlich of responding to RFAs and for evaluating motions to address defective responses. Holds that the trial court abuses its dis-

About this Issue

cretion in granting a motion to deem RFAs admitted after responding party serves response four days late when the responses substantially comply with the Discovery Act’s requirements for RFAs; provides standard for how courts must evaluate motions to deem RFAs admitted, and holds that RFA responses that provide additional explanatory information can be sufficient. Synopsis: St. Mary sued Schellenberg and his wife for fraud arising out of a failed real-estate investment.

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Schellenberg propounded 105 RFAs on St. Mary. Her counsel requested an extension of time to respond to the RFAs, but Schellenberg did not respond to that request until after the responses were due, and then only granted a conditional extension that St. Mary did not accept. St. Mary served verified responses four days late. Schellenberg moved to have the RFAs deemed admitted. The trial court deemed 41 of the 105 RFAs admitted and awarded Schellenberg sanctions. St. Mary petitioned for a writ. Writ issued, and order granting motion and sanctions vacated. Section 2033.010 of the Code of Civil Procedure authorizes the use of RFAs. If no protective order is sought, responses are due within 30 days of service, and the response must be made in writing, under oath; each response must answer the substance of the requested admission. The responding party must either (1) admit as much of the request that is true as expressed in the request itself or as reasonably qualified by the responding party; (2) deny so much of the request is untrue; or (3) specify that the responding party lacks sufficient information to respond. If the propounding party believes that the responses to the RFAs are insufficient, it may bring three types of motions, depending on the circumstances: (1) a motion to deem the RFAs admitted based on the responding party’s failure to serve any responses in a timely fashion (a “deemed admitted motion”); (2) a motion to compel further responses when the responses are claimed to be insufficient or there are improper objections (a motion for further responses); or (3) a motion to deem responses admitted or for sanctions based on the responding party’s disobedience of a prior order compelling further responses. Shellenberg’s motion was a deemed-admitted motion.


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Under § 2033.280, subd. (c), a deemed-admitted motion cannot be granted if, before the hearing on the motion, the responding party served responses to the RFAs that are substantially compliant with the requirements in § 2033.220. Here, St. Mary served her responses before the deemed-admitted motion was even filed, so the dispositive issue is whether her responses were substantially compliant with the requirements of § 2033.220. The court rejected the trial court’s piecemeal review of St. Mary’s response, in which it found that 64 responses were sufficient and 41 were not. There is no authority for this approach. Under § 2033.280, sub. (c), the court must evaluate the entire response in toto for substantial compliance, and not segregate each individual RFA response for the purpose of finding that some are compliant and others are not. Even if the court were to accept the piecemeal approach taken by the trial court, it does not agree with its determination that St. Mary’s responses were not substantially compliant. For example, one RFA asked St. Mary to admit that she attended a meeting with David Nilsen on January 13, 2006. She responded, “Admit. Thomas Schellenberg was also present.” The trial court improperly held that the additional statement about Schellenberg made the response noncompliant. It is not inappropriate to add additional information or to explain the basis for an admission or denial of an RFA. The court’s review of the totality of St. Mary’s response to the RFAs was that they were substantially compliant with the Discovery Act’s requirements. In his reply in support of his motion, Schellenberg attempted to transmute his deemed-admitted motion into a motion to compel further responses. This was improper, since the motion was noticed as a deemed-admitted motion, and no explanation was provided in it about any defects in any of the responses by St. Mary. The trial court abused its discretion in granting the motion.

Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522 (Fifth Dist.) Who needs to know about this case: Lawyers handling products-liability cases where the “sophisticated user” defense is asserted. Why it’s important: Clarifies standards for who qualifies as a “sophisticated user”. Synopsis: Plaintiff was a maintenance worker. He was using a Milwaukee half-inch pistol grip electric drill to drill a hole in a piece of angle iron. The drill bit bound and the drill counter-rotated, twisting his arm and injuring him. Plaintiff sued Milwaukee for products liability. In response to the failure-to-warn allegation, Milwaukee asserted that plain-

tiff was a sophisticated user of the drill, and any failure to warn was not the legal cause of his injuries because he knew, or should have known, of the dangers involved in using the drill. Plaintiff ’s theory was that the drill could not be safely used without a side-handle/anti-torque bar. The drill originally came with a side handle, and the operating manual of the drill advised to always use the side handle for best control. The label on the drill read: “warning / high rotating force / hold or brace securely to prevent personal injury or damage to tool / read safety instructions before operating.” When plaintiff was injured, his employer no longer had the side handle or the operating manual. Plaintiff was not a licensed contractor, but he had been using power tools

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Appellate — continued

and doing handyman work over 20 years. He had experience in maintenance, roofing, flooring, electrical work, plumbing, carpentry, cement finishing, and framing. He had used power tools and drills in his employment and considered himself to be handy with power tools. There was conflicting evidence regarding whether plaintiff had used the subject drill or one like it before the accident. The jury, in a special verdict, found the drill was not negligently or defectively designed. The jury did not determine whether there was a failure to warn or inadequate warning, because it resolved the failure to warn issue by finding that the plaintiff was a sophisticated user. Plaintiff moved for a new trial on the ground of insufficiency of the evidence, asserting, among other things, that there was insufficient evidence to support the jury’s finding that plaintiff was a sophisticated user. The trial court granted the motion on this ground, and the defendant appealed. Affirmed. Under California’s product-liability law, a product may be defective if it is dangerous because it lacks adequate warnings or instructions. Two types of

warnings may be given. If the product’s dangers may be avoided or mitigated by proper use of the product, the manufacturer may be required adequately to instruct the consumer as to how the product should be used. If the risks involved in the use of the product are unavoidable, as in the case of potential side effects of prescription drugs, the supplier must give an adequate warning to enable the potential user to make an informed choice whether to use the product or abstain. Under the sophisticated user defense, adopted in California in Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, sophisticated users need not be warned about dangers of which they are already aware or should be aware. Because these sophisticated users are charged with knowing the particular product’s dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause. The user’s sophistication is determined as of the time the user was injured. In order to establish the defense, the defendant must identify the relevant risk,

show that sophisticated users are already aware of the risk, and demonstrate that the plaintiff is a member of the group of sophisticated users. Because the sophisticated user’s knowledge is essentially a substitute for a warning from the supplier of the product, in order for the defense to apply, the scope of knowledge of the sophisticated user must parallel the scope of the warning that would otherwise be required. With respect to the case before it, the court explained that, it is not enough that the user be aware of the danger that the drill may bind and counter-rotate when it is used improperly or when the drill bit strikes an obstacle. In order to establish the defense, a manufacturer must demonstrate that sophisticated users of the product know what the risks are, including the degree of danger involved (i.e., the severity of the potential injury), and how to use the product to reduce or avoid the risks, to the extent that information is known to the manufacturer. Thus, in this case, defendant was required to prove sophisticated users know there is a danger the drill may bind and counter-rotate, this may cause

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serious injury to the user, and the risk may be reduced or eliminated by proper use of a side handle. The court concluded that the trial court did not abuse its discretion by granting a new trial. Milwaukee failed to demonstrate that no reasonable finder of fact could have found that plaintiff was not a sophisticated user of the drill.

Short(er) takes Duty to unborn persons; products liability; negligence; strict liability: Elsheref v. Applied Materials, Inc. (2014) __ Cal.App.4th __ (6th Dist.) Khaled Elsheref worked at Applied Materials, Inc. (“AMI”) from 2001 to 2008 as an engineer. His duties included working with tools containing mercury and ethylene glycol, among other chemicals, as well as tools emitting ionizing radiation. While Khaled worked at AMI, his wife conceived and gave birth to their son, Waleed. Waleed was born with serious birth defects. The family sued AMI, alleging that AMI knew or should have known about the hazardous nature of the chemicals and processes to which its

employees, including Khaled, were exposed; failed to adequately protect its employees, including Khaled, from such exposure; concealed and/or misrepresented the nature of the chemicals; and failed to warn its employees about the nature of the chemicals and processes. Plaintiffs further alleged that AMI had “actual or constructive knowledge that serious injury, including teratogenic, genotoxic and reproductive harm ..., was a probable result of exposing their employees and their unborn or future children to harmful chemicals and processes.” AMI moved for summary adjudication, seeking a ruling that it did not owe a duty of care to plaintiffs for preconception injuries. Specifically, AMI argued that it lacked any duty to its employees’ future children because, under California law, only medical professionals and manufacturers of products related to conception or pregnancy have been held to owe a duty of care to later-conceived children. The trial court granted the motion, concluding that all of plaintiffs’ claims were predicated on a duty owed by AMI to its employees’ unborn and future children.

Affirmed in part; reversed in part. Relying on the factors detailed in Rowland v. Christian (1968) 69 Cal.2d 108, 112, the court held that AMI did not owe a duty to its employees’ unborn and future children in the circumstances presented by the case. But the court reversed the summary judgment to the extent that plaintiffs relied on a strictproducts liability theory, since duty is not an element of that claim. Jeffrey Isaac Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. He is the editor-in-chief of Advocate magazine.

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CAALA Photo Essay

January 18, 2014 Beverly Wilshire Hotel Photos by Snap Yourself!

Hon. Carolyn Kuhl installed the 2014 Officers and Board of Governors

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(Photos from left to right) Hon. Daniel Buckley accepts Trial Judge of the Year Carney Shegerian accepts Trial Lawyer of the Year Award Ibiere Seck accepts the Rising Star Award from Ricardo Echeverria, CAALA Second Vice President

(Photos from left to right) Lisa Maki, 2013 President and Geoffrey Wells, 2014 President David Ring, CAALA First Vice President, presents Appellate Justice of the Year Award to Hon. William Rylaarsdam Mike Arias, CAALA Treasurer, presents the Ted Horn Memorial Award to daughter Cammy (center) and wife Sandy Marks on behalf of Scott Marks

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From the Executive Director Stuart Zanville

Consumer Attorneys Association of Los Angeles

Play ball! The start of a new season the connection between CAALA and our national pastime There is aFrom strong Executive Director

I’m writing this column on the day the South Bay and is now a scholarship of the Super Bowl,Stuart the biggest freshman on the baseball team at Stevens Zanvilledarned sporting event in the history of mankind. Institute of Technology in New Jersey. CAALA At least that’s what the NFL and the Geoff is still a fan and a coach and sponsors would like you to believe. his passion for the sport is the reason I must admit, though, that although everyone in attendance at the Gala left my favorite sports team is the USC footwith a Geoff Wells “autographed” baseball squad, my favorite team sport is ball. baseball. For any true baseball fan, March Geoff told the audience that his dad is the best part of the baseball season Carl was a minor league baseball player because March is the opening in the 1950s and was once a teammate of Stuart Zanvilleof Spring Training. the legendary Frank Robinson. CAALA This is the time when every team But Geoff isn’t the only CAALA starts with the same record; every player member who played baseball at a high believes this will be their best year and level. the hopes of every fan spring eternal. Tom Girardi will tell you that he was Apparently I’m not the only one a promising minor leaguer when his famassociated with CAALA who is a fan of ily convinced him to give up baseball and baseball. After a little research, I’ve disgo to law school. Actually, Tom says he covered a strong connection between was a struggling minor leaguer, but I’m Stuart baseball, trial lawyers andZanville our associagiving him the benefit of the doubt. Consumer Attorneys Association of Los Angeles tion. Former CAALA President Tom Dempsey played baseball at UCLA and CAALA’S Hall of Fame continues to play regularly as a member of the UCLA Alumni baseball team, sharing If you attended this year’s the field with players one-third his age. Installation and Awards Dinner, you CAALA’s President-Elect Joe Barrett heard new CAALA President Geoff Wells’ is a regular player on local amateur basetalk about his love for baseball. Geoff was ball teams made up of former and future a stellar high school and college pitcher major leaguers. Joe will tell you that his in his home state of Washington. His son By Stuart Zanville league has produced a number of major was an outstandingConsumer high school player in of Los Attorneys Association Angeles league pitchers. Joe will also tell you how successful he is hitting against those pitchers. Long-time CAALA member Gary Stern just completed his fifth baseball fantasy camp playing alongside former major leaguers. Stern has great passion for the camps, loves the experience and quotes former Dodger Carl Erskine that, Decipher, summarize & organize medical “When you go home, don’t try to explain records it; they’ll never understand.” Prepare medical One of CAALA’s new Board of chronologies Governor members is Tobin Lanzetta. He Medical bill review was a great high school and college pitcher and audit and made it to the high minor leagues before deciding to become a trial lawyer. There are others associated with (805) 577-7851 www.deciphermed.com CAALA who aren’t lawyers but have ties

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to baseball. CAALA’s Finance Director Bill Smith made it to the minor leagues as a pitcher and CAOC Development Director Laurie Klimchock’s dad Lou was an infielder who played with five major league teams in a 12-year pro career. Structure broker and CAALA-supporter Len Blonder is also a baseball fantasy camp player and is a close friend of Dodger legend Don Newcombe.

Playing to win

If you think about it, there are other comparisons between trial lawyers and baseball. If a trial lawyer has a great closing argument, his peers will say that he or she “hit it out of the park.” If the closing doesn’t resonate with the jury, the description will be that they “whiffed.” Like baseball players, trial lawyers are competitors who play to win. Not all of them use the same style, either. Like pitchers, some overpower you and some use finesse. Trial lawyers will tell you that the civil justice system levels the playing field and that like in baseball; there are rules and an arbiter applying them to both sides. It’s also true that one young trial lawyer can prevail against a table full of expensive defense attorneys. This is the same in baseball, where the team with the most money or highest payroll doesn’t always win. Just ask fans of the Oakland A’s who won their division with a small payroll; or the high-payroll Yankees who didn’t. Trial lawyers, like baseball players, must have short memories too. When a verdict doesn’t go their way, they have to shrug it off and move on, just like a pitcher who gives up a game-winning hit. Here we go, it’s the start of a new season and everyone has an equal chance to win. Whether you are a trial lawyer or a baseball player, or both, it’s time to “Play ball.”


me

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From the President Casey Johnson

Orange County Trial Lawyers Association

High hopes OC Justice: access and accountability We’ve just scratched the surface of 2014 and the Orange County Trial Lawyers Association is already making good on its ambitious agenda and living up to its theme for the year – OC Justice: Access and Accountability. Efforts are already underway to facilitate meetings with every State Senator and California Assemblywoman representing Orange County, in their district offices, to discuss with them the dire need of a fully funded judiciary. As each week passes, more and more stories appear in the news illustrating ways all Californians are being adversely affected by underfunded courts. The court crisis affects everyone in California, and we must continue to be diligent in educating our elected officials about the necessity of a properly funded justice system.

At work for consumers

On February 1, OCTLA celebrated its 51st Anniversary with the Installation of its 2014 Officers and Board of Directors officiated over by the Honorable Andrew Guilford. OCTLA also presented its Judge of the Year Award to Presiding Judge Glenda Sanders, and Cynthia Craig and Anthony Burton were recognized as the OCTLA Board Members of the Year. The keynote speaker for the evening was Harvey Rosenfield, founder of Consumer Watchdog, and the clear theme for the entire evening was the importance of protecting consumers, and this year, overturning the MICRA cap on non-economic damages. Fresh off the 25th Anniversary of spearheading the efforts to enact Proposition 103 in California – the toughest automobile insurance regulation in the nation – Harvey continues his lifetime of consumer advocacy in 2014, by working diligently to help overturn the outdated MICRA cap, and by seeking to extend Proposition 103 protections to health-insurance rates. Dubbing 2014

“The Year of the Patient” Consumer Watchdog will be working alongside trial lawyers and injured victims in trying to provide future consumer protections to all Californians, as well as lifting the indefensible, 38-year-old (and unadjusted) cap on general damages in medical malpractice actions. OCTLA was honored to host one of the greatest consumer advocates in the nation, whose energy and dedication to consumer protection served as the perfect rallying cry for the tough work we face in the coming months.

OCTLA joins with High Hopes

The other exciting announcement made at the Installation event was OCTLA’s 2014 association with High Hopes Head Injury Treatment Center. Each year OCTLA chooses a non-profit organization to be the beneficiary of the silent and live auction proceeds at the Top Gun Trial Lawyer of the Year Awards Dinner in November. Last year OCTLA raised more than $64,000 for charity, and we hope to meet or exceed that figure this year. High Hopes was developed in 1975, as the first non-profit organization in the country to exclusively serve the needs of brain-injured adults and their families. By crafting individualized treatment plans to serve its patients through physical programs and therapies, speech therapy, cognitive retraining, vocational training, occupational therapy and independent living classes, High Hopes has enjoyed tremendous success in helping its patients maximize their level of functioning and independence. High Hopes is recognized as a leader in the field of brain-injury treatment, and through the generous support of donors, has been able to amass a facility complete with the most advanced and effective therapy machines available. High Hopes is one of just a few treatment facilities in the country that have two Lokomat Training

machines – which help individuals with brain injuries “relearn” to walk. As with most such successful non-profit organizations, High Hopes is unable to accommodate everyone who seeks to become a patient, due to funding constraints. Despite continually providing exceptional treatment to 70 patients, the waiting list is long. And it is not hard to see why. It is estimated that this year alone, 1.5 million people in the United States will sustain a brain injury. In Orange County alone, 2,000 people will suffer a non-fatal brain injury in 2014. Stronger causal links between head injuries and sports are being discovered nearly every day, and the numbers of people suffering cognizable brain injuries are on the rise. With the average lifetime cost of medical care and rehabilitation for someone with a brain injury estimated at $7 million, the need for affordable brain-injury treatment has never been greater. Of the 70 patients currently treating at High Hopes, 69 receive some sort of scholarship/charitable assistance in order to participate in the program. OCTLA looks forward to working closely with High Hopes in the coming year to help High Hopes continue to provide cutting edge brain injury treatment, and hopefully expand its services to reach even more patients. High Hopes turns patients’ hope into reality, and OCTLA looks forward to assisting in this admirable goal and helping braininjured individuals reclaim their dignity and independence. For more information on High Hopes, please go to www.highhopes.ws. 2014 is just getting started, but we’ve got High Hopes that this year will be transformative for consumers across California.

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CAALA Resource Center

CAALA’s Multi-Function Conference Center - Conference Rooms Available for Rent By Cindy Cantu, Managing Editor The Consumer Attorneys Association of Los Angeles is pleased to offer use of its state-of-the-art Multi-Function Conference Center for meetings, seminars and conferences at its Downtown Los Angeles headquarters. There is a large conference room available to rent, as well as a smaller conference room available for CAALA members to use at no charge. The small conference room accommodates up to 20 people around a permanent conference-room table. It’s the perfect size for client meetings, depositions or to wait for a jury verdict when you’re in Court downtown. A wireless Polycom speaker phone system is also available. The large 1,500-square-foot conference room offers flexible seating, presentation and lighting configurations, and can accommodate up to 75 attendees in a board/class room setting or 100 attendees in a theater-style setup. In addition, the large conference room offers the following advanced technical A/V equipment: • 10’ x 10’ Retractable Projection Screen • Ceiling-Mounted Overhead Projector

• 52” HD LCD Flat Screen Monitors (2) • Multiple Video Sources (Cable, DVD/CD, Computer) • Multiple Computer Presentation Jacks • Wi-Fi Internet Access • Wireless Polycom Speaker Phone System • Wireless Handheld Microphones • Built-in Sound System The daily rental rate for the large conference room is $400, 9 a.m. to 5 p.m. There is a $350 surcharge for room rentals after normal business hours and on weekends. A full-service kitchen with beverage service (coffee, tea, water) is offered with either conference room rental. The CAALA Office is located at 800 W. 6th Street (at Flower St.), Downtown Los Angeles. Valet parking is available in the building for $10 per hour, after 2 hours and 45 minutes $27.50 max; and $7 for vehicles entering after 4 p.m. Reduced-price lots are also available on Flower south of Seventh Street. To rent one of the conference rooms, call Martha Ruiz, CAALA Office Administrator at (213) 487-1212.

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MARCH 2014

Southern California Mediation Association P.O. Box 6205 Huntington Beach, CA 92605 Contact: Anne Sawyer (866) 440-7880 E-mail: anne@scmediation.org CATEGORY: Arbitration/Mediation Mediators & Mediation, Negotiation & Conflict Resolution Training. Southern California Pain Institute 16260 Ventura Blvd., LL16 Encino, CA 91436 (818) 456-8046 Contact: Foead Geula E-mail: foeadgeulamd@gmail.com

CATEGORY: Pain Management Double board-certified interventional pain management physician. The Spine and Orthopedic Center 201 E. Carrillo Street Santa Barbara, CA 93101 Contact: Mallery Snyder (805) 310-0286 E-mail: Mallery@spineandorthocenter.com CATEGORY: Medical Experts | Orthopedics | Pain Management Multispecialty orthopedic group specializing in the treatment of acute injuries and chronic conditions through conservative care up to surgical intervention. Vocational Economics, Inc. 5900 Wilshire Blvd., Suite 2600 Los Angeles, CA 90036 Contact: Anthony & Debra Gamboa (310) 533-1000 E-mail: debrag@vocecon.com CATEGORY: Expert Witness | Life Care Planning | Vocational Rehabilitation Vocational Economics, Inc. is a national, forensic consulting firm, specializing in defining economic damages. Analysts work directly with attorneys to define objectively economic damages with special emphasis on loss of earning capacity, future health and medical care costs (life care plans), and business and commercial damages.


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CAALA Connection Center CAALA offers four attorney member-only List Serves to connect with other members By Cindy Cantu, Managing Editor Through our List Serves, you can find the answer to just about any question in your practice; refine concepts, strategies, tactics, and share documents, pleadings, and briefs to help you win the case. List Serve access is included with attorney membership, no additional fee required.

CAALA-LIFE List Serve CAALA-LIFE List Serve is for CAALA Attorney Members to confidentially exchange experiences, ideas and information related to their legal practice or the business of law that may not be defined as work-product. Examples include: congratulatory messages, questions and comments relating to products and services, employment opportunities, office space rentals, and messages about individual experiences related to the practice of law.

CAALA Connection Center

CAALA-LAW List Serve CAALA-LAW List Serve is for CAALA Attorney Members to confidentially exchange important work-product information and advice with each other, relating to trial strategy, references and background of experts, judges, defense attorneys, defendants, arbitrators, and mediators; case evaluation information; recent developments in the law; court rules; pleadings; tactics; attorney referrals, legal research, legal questions and other attorney work-product information.

CAALA-POL List Serve CAALA-POL List Serve is for CAALA Attorney Members to confidentially exchange messages that are a civil exchange of information, ideas and opinions regarding politics (local, state, national or international); current events, religion and nonlegal general topics that are of interest to the CAALA membership.

CAALA-NEWLAWYER List Serve CAALA-NEWLAWYER List Serve is for Attorney members of CAALA who have been admitted to the practice of law for less than 10 years to confidentially communicate and exchange with each other information, ideas, advice, guidance, etc. related to the practice of law. To join any of CAALA’s List Serves, you must maintain current status as a plaintiff attorney member of CAALA. You are also required to read, agree to and sign the List Serve Rules and Joint Prosecution/Confidentiality Agreement on an annual basis. Please visit the ‘Litigation Resources’ tab on the CAALA Web site to join a list serve or for more information.

Connect with New CAALA Members: We welcome the following new members who joined CAALA during the month of January Arno Akobyan Loyola Law School

Chelsea Chun Law Offices of Ben Yeroushalmi

Talia Nicoghosian Glendale University College of Law

Richard Apodaca Rodriguez & King

Vincent Consolo Law Offices of Gerald L. Marcus

Erick Novik Attorney at Law

Vahe Avanessian Avanessian Law Group

Antonio Gallo Antonio Gallo and Associates

Randolph Ramirez

Mitchell Beck Law Offices of Larry H. Parker, Inc.

Stanley Karas Capstone Law

Jamie Rinehart Rose, Klein & Marias, LLP

Yasha Bronshteyn Ginzburg & Bronshteyn, LLP

Shant Karnikian Kabateck Brown Kellner LLP

Aryan Sarbaz Selarz & Sarbaz LLP

Zack Broslavsky Broslavsky & Weinman, LLP

Saro Kerkonian Kerkonian & Chakerian, LLP

Daniel Selarz Selarz & Sarbaz LLP

Maral Broutian Attorney at Law

Alice Kuo Carpenter, Zuckerman & Rowley, LLP

Jairo Sequeira Southwestern Law School

Lindsay Burton Loyola Law School

Bruce Levenson Attorney at Law

Pratik Shah Shah Kasreliovich, LLP

Bryan Castaneda Metzger Law Group

Tony Lozano Law Office of Scott E. Spell

Justin Silverman Reisner & King LLP

Shant Chakerian Kerkonian & Chakerian, LLP

David Mallen Employee Law Group

William Strickland Attorney at Law

Danielle Charles Attorney at Law

Shahane Martirosyan Reisner & King LLP

Kellie Terhufen Law Offices of Kellie L. Terhufen

James Chin Waters, Kraus & Paul

Joseph Mobassernia The Brahman Law Office

Kaytee Vota Atabek & Associates

Donald Chomiak Talisman Law, P.C.

Patrick Nagler Waters, Kraus & Paul

Jonathan Zweig Ercolani Law Group MARCH 2014

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Sacramento Update By Lea-Ann Tratten CAOC Political Director A defining moment for us all Nearly all of us involved in consumer law share a few common characteristics. One is an undying belief in the cause of the underdog. Another is the love of a really good brawl. A third might be an idealistic streak that manifests itself in willingness to rally around a virtuous cause, the sort of issue or dispute that seems insurmountable but will define us as individuals and as a group. Welcome to our defining moment. This year’s battle to better protect patients, by in part adjusting California’s unjust MICRA cap to account for 38 years of inflation, will test us as an organization of trial lawyers like little else in our lives. We face a foe – the medical industrial complex of hospitals, insurance companies and physicians – with the deepest pockets in Sacramento. In 2013, the healthcare industry spent more than $33 million lobbying Sacramento lawmakers. Leading into the Nov. 4 election that will decide the fate of the Troy and Alana Patient Safety Act, the triple-threat measure to cure the state’s epidemic patient safety problem, we expect to be outspent on the campaign trail by an industry that is among those most profitable in the nation. Although we have proven victorious in the past over such deeppocketed foes, it takes individual and collective fortitude to face those sorts of odds. It takes belief in the cause and faith that the California electorate will find their way through the thicket of propaganda unleashed by our foes and do the right thing in the voting booth. We all know that fixing MICRA and better protecting patients is the right thing. MICRA has not been adjusted for inflation for 38 years, and it’s $250,000 cap on noneconomic damages has had an insidious impact on the ability of vulnerable malpractice victims to secure justice and fair compensation while holding wrongdoers accountable. Raising the MICRA cap to account for inflation would combine with the other provisions of the Pack Act – random drug and alcohol testing of doctors (because nearly one in five suffer substance-abuse problems in their lifetimes) and safeguards against rampant prescription drug abuse – to help better protect patients from poor-performing doctors, drunk or drugged doctors and doctor shopping. Will California voters do the right thing? Off the bat, it appears they will. Our most recent polling indicates 73 percent would vote for the Pack Act. Of course, foes will do their best to knock that number down, but our strategists say the initiative should survive even a well-funded campaign fusillade of negative advertising. Some may ask, why MICRA? Why should we take on this epic fight? After all, only a small cadre of California trial lawyers specialize in medical negligence cases. Relatively few malpractice cases are filed each year compared to other areas of personal injury law. Even with the modernization of MICRA it would remain a relatively specialized and limited area of practice, as much as our foes would like the public to believe the sky will fall. The reality is that MICRA represents much more than just a barrier to justice for patients harmed by the health-care system. It is used by

104 — The Advocate Magazine

MARCH 2014

our foes as a coalition builder for causes that have nothing to do with the malpractice cap. In 2012, our efforts to address the disastrous Howell decision with statehouse legislation were undone as big insurance industry foes rallied MICRA backers to their cause. Never mind that Howell had absolutely nothing to do with MICRA or its $250,000 cap. We learned a lesson in obfuscation: MICRA stands as a wrong-way rallying cry for our foes and as a roadblock to any progress we will attempt to make on behalf of consumers, even on unrelated fronts. But the main reason we should all step up in the months ahead isn’t organizational power or political considerations or any impact on pocketbooks. It is for kids like Troy and Alana Pack, killed at ages 10 and 7 by a doctor-shopping prescription drug addict who drove her car off the road and plowed into them. It’s for babies like 6-week-old Mia Chavez, who died after doctors failed to diagnose and treat her for whooping cough in the middle of a whooping cough epidemic. It is for toddlers like Morgan Westhoff, who succumbed at just 18 months of age after doctors botched a surgery to correct a genetic heart defect. Each of them died when they shouldn’t have. They make this our defining moment.

Washington Update By Linda Lipsen CEO, American Association for Justice Forced arbitration update: Senate Judiciary Committee Hearing The U.S. Senate Judiciary Committee held a hearing in December chaired by Sen. Al Franken (D-MN) called, “The Federal Arbitration Act and Access to Justice: Will Recent Supreme Court Decisions Undermine the Rights of Consumers, Workers, and Small Businesses?” The hearing highlighted the ever-expanding use of forced arbitration and how it wipes out the ability of states to enforce their own laws and strips individuals of their rights to seek meaningful redress from wrongdoing corporations in court. AAJ was involved with the planning and preparation of the hearing, including coordinating coalition letters, statements for the record and witness preparation. Our witnesses came equipped with facts, were better prepared and had the U.S. Chamber of Commerce’s witnesses on the defensive throughout the entire hearing. While several senators on the committee both attended and offered meaningful contributions to the hearing, Senators Hirono (D-HI), Whitehouse (D-RI) and Blumenthal (D-CT) merit special recognition for their powerful testimony discussing institutional investor protections, the constitutional protections necessarily afforded to our civil justice system and the need to ensure that, at a minimum, our service members are afforded the protection of our federal laws in the face of forced arbitration clauses, respectively. Post-hearing, AAJ continues to build on the momentum garnered from the hearing and will work with Congress, the various committees of jurisdiction and the numerous agencies and stakeholders tasked with the monumental task of ending forced arbitration.


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Calendar

Consumer Attorneys

March 22, 2014 Trial Lawyer Skills for the New Attorney 9:00am - 4:00pm Program 4:00 - 6:00pm Hosted Reception Biltmore Hotel Downtown Los Angeles

ASSOCIATION OF LOS ANGELES

CAALA Consumer Attorneys Association of Los Angeles

Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm Mar. 6, Apr. 5, May 1

800 West Sixth Street,#700 Los Angeles, CA 90017 (213) 487-1212 www.caala.org

Advertiser’s Index

ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .72 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Hanger, Bob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .50 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .52 Sepassi & Tarighati, LLP . . . . . . . . . . . . . . . . . . . . . . .21 Announcements and Career Opportunities CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .77 CAALA PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81 CAALA VEGAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Mahacek, Jim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 Attorneys – Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Banifsheh, Danesh & Javid, PC . . . . . . . . . . . . . . .22-23 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 CaseyGerry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .43 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96, 97 Dolan Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .61 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . .58 Kamanski Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .75 Law Offices of Marc I. Zussman . . . . . . . . . . . . . . .105 Law Office of Michels & Lew . . . . . .Inside Back Cover Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .25 Manly & Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 McGonigle, Timothy . . . . . . . . . . . . . . . . . . . . . . . . . .15

106 — The Advocate Magazine

MARCH 2014

Attorneys – Accepting Referrals (cont.) McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .63 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Shegerian & Associates . . . . . . . . . . . . . . . . . . . . . . .27 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . .65 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Court Reporters Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .42 Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . .78 Haiby, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Expert Witnesses – Medical Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . .67 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . .73 Expert Witnesses – Technical & Damages Balian & Associates . . . . . . . . . . . . . . . . . . . . . . . . . .30 Collins, Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Phillips, Fractor & Company . . . . . . . . . . . . . . . . . . . .85 Financial Services BBVA Compass Bank . . . . . . . . . . . . . . . . . . . . . . . . .53 California Attorney Lending . . . . . . . . . . . . . . . . . . . .93 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Farber, Patrick (Struct. Stlmts.) . . . . . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .33 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Summit Structured Settlements . . . . . . . . . . . . . . . . . .72 Zea, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74 Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 CSC Anatomy Arts . . . . . . . . . . . . . . . . . . . . . . . . . . .82 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . 7

Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm Mar. 20, Apr. 17, May 15 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Mar. 20, Apr. 17, May 15 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm Mar. 18, Apr. 15, May 13

Graphics/Presentations/Video (cont.) High Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Legal Graphics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 MotionLit Video Group . . . . . . . . . . . . . . . . . . . . . . . .16 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . .59 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .19 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 Investigators Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Legal Marketing Berbay Corporation . . . . . . . . . . . . . . . . . . . . . . . . . .38 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Nutris Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99 Legal Support Services 4 Corners Deposition Summaries . . . . . . . . . . . . . . . .64 ABC Virtual Offices . . . . . . . . . . . . . . . . . . . . . . . . . . .91 USA Express Legal & Investigative Services . . . . . . .44 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .29 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .76 North Valley Eye Medical Group . . . . . . . . . . . . . . .92 Parehjan & Vartzar Chiropractic, Inc. . . . . . . . . . . . .40 Organizations CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Polygraph Investigations Trimarco & Associates . . . . . . . . . . . . . . . . . . . . . . . .49 Software HiPerSoft Corporation . . . . . . . . . . . . . . . . . . . . . . . .39


Advocate Mar14 issue2_Advocate template 2007.qxd 2/18/2014 2:41 PM Page 107

I refer all of my securities cases to Marc Zussman and I have also worked with him. He is an excellent lawyer. — Brian J. Panish Attorney

Refer your Securities Arbitration (FINRA) or Litigation Cases for a Generous Referral Fee. With a success rate greater than 90%, we are well equipped to maximize your clients’ recovery on a wide variety of securities law-related matters. We take pride in our referral relationships and our ability to share attorneys’ fees with referring attorneys. We represent investors who have lost money due to mismanagement of their portfolio by their investment professionals. Seven-figure FINRA Awards and Settlements.

We accept cases from the 2008/2009 market crash. SPECIALTIES INCLUDE: • Underperformance of stock in a bank trust account • Unsuitable investments or strategy • Securities Fraud • Private Placement and REIT Fraud • Churning/Reverse Churning • Unauthorized Trading • Overconcentration/Asset Allocation • Margin Trading • Mutual Fund Fraud • Negligent Supervision and more

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Fax: (310) 881-6805

Visit our website for more info:

www.zussmansecuritieslaw.com mzussman@zussmansecuritieslaw.com 10250 Constellation Boulevard, Suite 2900 Los Angeles, CA 90067


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From the President Geoffrey Wells

Consumer Attorneys Association of Los Angeles

I believe heroes exist Never give up on yourself and the cause you are fighting for each day − simple civil justice for your clients. The CAALA Installation Dinner was a real inspiration for me, and I hope everyone in the room felt the same way. It was very interesting to hear Carney Shegerian speak about his life and what he has gone through on a personal level. I was so happy to see Ibiere Seck express her enthusiasm for being a rising star and, of course, who could forget Judge Rylaarsdam explaining why he chose to go to Loyola Law School over USC. The Ted Horn Award video of Scott Marks and his family brought me to tears. I have never been prouder to be a member of CAALA than I was that night when Mike Arias walked over to their table and presented the award to Scott’s wife, Sandy, and his daughter, Cammy. I especially want to give thanks to all the people who showed up and showed such great deference and respect during my speech and the speeches given by many others. It was a night to give thanks to many of the people who have helped me in my life and career. Let’s face it – we have all needed help at one time or another. It was also a night to reflect. A night to tell what I remember and what I believe. As winter turns to spring, I want to encourage everyone to re-commit to the cause of civil justice. This is a tough job but sometimes the fight is just as important as the results. Reflecting on a tough case that I tried with Browne Greene several years back, it reminded me of why we do what we do. The case was trifurcated from liability to causation to damages. It involved an approximately eightmonth pregnant woman who was making a left turn and was struck by a vehicle that was sort of curb sneaking around a construction zone and caused a t-bone 108 — The Advocate Magazine

MARCH 2014

type accident. Her daughter was born about four weeks later. She suffered hundreds of seizures at the beginning of her life and eventually was diagnosed with Cerebral Palsy. There were a ton of experts in the case and the case went on for many years. Just before the first trial date, the defense expert pediatric neurologist came up with a new theory that some anti-depression medication that was ingested by the mother was the likely cause of her child’s seizure disorder and resultant Cerebral Palsy. We had no experts on this issue with respect to the medication and/or the doctors who prescribed it. The trial court would not let us amend our expert-witness list, and we were put in a tough position. We decided to have the case dismissed and re-filed because the plaintiff minor was only five years old at the time of the dismissal. We then re-filed the case and brought in the drug manufacturers and the doctors, who eventually filed motions for summary judgment, got out of the case and then we were back in action with our theory of just a regular negligence and course and scope of the defendant driver for his company. The trial was extremely tense; however, the case settled while the jury was deliberating on the first phase of the trial. Although the amount was confidential, it is fair to say that all sides believed it was the right thing to do because of the risks involved to both the plaintiff and the defense. After the trial, the client’s mother wrote a letter on behalf of her Cerebral Palsy diagnosed daughter that was one of the most meaningful letters I have ever received as a lawyer. I thought I would share it with you because it is of such

propound significance to what we do as trial lawyers. Dear Geoff: Words elude at describing my profound gratitude for all you have done for me. While words themselves are inconsequential, their meaning have consequence. For you have forever impacted my life. You believed in me. Now I will share what I believe in. I believe that heroes exist. That warriors and peacemakers are two sides of the same coin and you need them both to win the war. I believe the truth shall set you free and so does the journey and closure of a case. I believe we work towards our fears and never give up. Perseverance means anything is possible. I believe that we are magic, life is precious, peace is reasonable, laughter is special, blessings are defined and love is grand. I believe that kindness matters. Each human life matters. I believe these things because I see them in you. Love, AB, Age 8 Every time I read this letter, I still am moved by the contents and meaning on behalf of both the mother and the daughter. Our clients do believe in us. So, at the very least, you should believe in yourself. This job has its ups and downs, wins and losses. However, my belief is that you never give up and you never give up on yourself and the cause you are fighting for each day − simple civil justice for your clients. I do believe that kindness and justice matters in all of our lives. Make sure you practice a little kindness every day as a trial lawyer too!


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Advocate March 2014 Issue  

For 32 years, Advocate magazine has served attorneys who represent plaintiffs in Southern California