Case studies and results details

Summary Judgment Granted in Landslide Case

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Robert H. Panman and Adrian J. Barrio recently won a summary judgment motion on behalf of their client, Mountains Restoration Trust (“MRT”). The case arose out of a 2005 Malibu landslide. After heavy rains, a good portion of the hillside behind co-defendant’s property slid down into the bottom of the ravine through, and onto, property owned by MRT, a public entity. Plaintiff alleged that the course of a waterway was re-directed in such a way as to cause movement and instability of plaintiffs’ property as a result of this slide. The waterway ran through MRT’s property at the bottom of the ravine. Plaintiffs asserted claims of nuisance, trespass, and negligence.

The Court granted MRT’s summary judgment because (1) as a public entity, MRT is statutorily immune from liability for damage caused by “natural conditions” on its property under Government Code sections 831.2 and 831.25, and (2) erosion constitues a “natural condition” as a matter of law and a public entity cannot be held liable for damage to an adjacent property caused by erosion.

M&C Obtains Dismissal of Potential Billion Dollar Class Action Lawsuit

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Jefferson S. Smith and Scott J. Loeding successfully achieved the dismissal of a class action lawsuit brought against several replacement window manufacturers when the trial court granted their Demurrer, without leave to amend, based upon the economic loss rule. M&C represented one of three defendants involved in the manufacturing and marketing of vinyl replacement windows, installed in millions of homes throughout California. The potential damages were estimated in excess of a billion dollars.

M&C originally filed a Demurrer to the class action Complaint on the grounds that the plaintiffs’ property damage claims were too individualized for a class action lawsuit. Plaintiffs subsequently amended their Complaint to allege that, although they sustained property damage as a result of the allegedly defective windows, they were not seeking to recover monetary damages for the property damage and instead were only seeking to recover the replacement costs of the windows.

Smith and Loeding filed a Demurrer to plaintiffs’ Amended Complaint, arguing that the claims for strict liability and negligence were barred under California’s economic loss rule. Because the cost of replacing or repairing the windows themselves constituted pure economic losses, M&C argued that plaintiffs could not sue in strict liability or negligence. The trial court agreed and sustained the Demurrer to the Complaint without leave to amend; thus dismissing M&C’s client from the action.

Plaintiffs have appealed the trial court’s decision to the Fourth District Court of Appeals. The Court of Appeals’ decision may have a significant and far-reaching impact on future class action lawsuits where plaintiffs seek to recover replacement costs for a defective product. Mr. Loeding is handling the pending appeal.

Cement Company Victorious in Major Personal Injury Action

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Mitsubishi Cement Corporation was successfully defended in a major personal injury action filed on behalf of a truck driver who was seriously injured in a tractor trailer accident by Guy R. Gruppie, Corine Zygelman and Adrian J. Barrio.

Judge Joseph E. DiLoreto, of the South District of the Los Angeles Superior Court, granted Mitsubishi Cement’s summary judgment motion, finding as a matter of law that Mitsubishi Cement did not cause or contribute to the incident which occurred after the driver had picked up a load of cement at a facility owned by the defendant. The driver lost control of the tractor trailer as it rounded a curve, leading to a crash where the driver suffered serious and alleged permanent injuries with substantial medical bills.

Mitsubishi Cement submitted undisputed evidence that its loading facility at the Port of Long Beach contained electronic and computerized scales that included fail-safe devices to prohibit any tractor trailer from leaving the facility in an over-loaded condition. Moreover, it was successfully argued by the moving party that the same driver had made other prior load deliveries from the Mitsubishi Cement facility with bills of lading issued each time confirming the gross load of the vehicle was under the 80,000-pound cut off. As such, the court was able to conclude that factors other than the conduct of Mitsubishi Cement were substantial factors in the occurrence of the accident. At pending trial against other defendants, plaintiffs are expected to seek a total award exceeding seven figures.

Court of Appeal Affirms Homeowners Association Board Rights in Published Decision

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Kenneth H. Moreno and Scott J. Loeding successfully defended a homeowners association (“HOA”) in a case involving the HOA Board’s decision to permit homeowners to utilize common area attic space for storage. After obtaining summary judgment at the Trial Court level, Murchison & Cumming prevailed on appeal in the published decision in Havery v. The Landing Homeowners Association (2008) 162 Cal.App.4th 809.

Murchison & Cumming recovered over $170,000 in attorneys’ fees and costs on behalf of the homeowners association and it’s insurance carrier.

For many years, homeowners on the top floor of a condominium complex used adjacent vacant attic space to store Christmas decorations and the like. This attic space was designated as common area pursuant to the HOA plans.

After a controversy erupted concerning the top floor homeowners’ use of the common area attic space, the HOA Board of Directors after an exhaustive investigation granted the top floor homeowners the limited right to use the common area attic space for storage pursuant to the terms of the CC&R’s which provided that the Board had the right to allow an owner to exlusively us portions of the common area provided that such portions were nominal in area, adjacent to the owner’s unit, and did not unreasonably interfere with the other owners’ use and enjoyment.

Plaintiff, the former president of the HOA Board, filed a lawsuit against the homeowners asociation and individual homeowners for breach of fiduciary duty, trespass and numerous other causes of action, including a request for punitive damages and attorneys’ fees. Murchison & Cumming filed a Motion for Summary

Judgment contending that the Board’s decision to allow use of the common area attic space for storage purposes was entitled to judicial deference under the California Supreme Court’s decision in Lamden v. La Jolla Shores Clubdominium HOA (1999) 21 Cal.4th 249. The Trial court agreed that the Board’s decision was entitled to judicial deference and greanted the Motion for Summary Judgment. The trial court also determined that the homeowners association was entitled to the full amount of requested attorneys’ fees and costs of approximately $130,000.

Unwilling to give up the fight over the use of vacant attic space, Plaintiff appealed to the Fourth District Court of Appeals in San Diego. On April 4, 2008 the Court of Appeals affirmed the judgment in favor of the homeowners association in a published decision declaring the granting the right to use the common area attic for storage was within the Board’s authority; that the Board of Directors acted upon reasonable investigation, in good faith and with regard for the interests of the community; and that there was no conflict of interest by the Board in authorizing the use of the attic space.

Murchison & Cumming thereafter recovered an additional $30,000 in attorneys’ fees and costs from the Plaintiff.

Racquetball Case Bounced Out of Court

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Plaintiff was injured while playing racquetball on a court at the Lake Arrowhead Resort. Plaintiff claimed that he slipped and fell on a slippery substance causing him to lose his balance and strike his head against the back wall of the court. As a result of the incident, plaintiff alleged brain damage, including a loss of memory. Plaintiff contended that the Resort negligently maintained the racquetball floor resulting in a dangerous condition unknown to plaintiff.

The Resort contended that plaintiff impliedly assumed the risk of injury while playing racquetball and, further, that there was no dangerous condition that caused plaintiff’s fall and injuries. Rather, the evidence established that plaintiff merely tripped over his own feet.

On July 31, 2008, the Superior Court for the County of San Bernardino granted summary judgment in favor of defendants, finding that plaintiff assumed the risk of injury and that he could not establish the existence of a dangerous condition. Guy R. Gruppie and Eric P. Weiss led the defense team’s efforts, with support from Gina E. Och and Jonathan S. Dennis.

Liability Waiver is Basis for Victorious Summary Judgment

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A Los Angeles Superior Court judge recently granted defendants’ Motion for Summary Judgment in a case which tested the legal sufficiency of a waiver executed by plaintiff Mary Stout before she took motorcycle riding classes at the Nelson Motorcycle Training Center in Palmdale. Guy R. Gruppie, Gina E. Och and Nanette G. Reed successfully represented defendants.

The court determined as a matter of law that the waiver signed by Ms. Stout completely barred the negligence lawsuit that she made against defendant for injuries that she sustained while riding a motorcycle during training as she agreed to assume all risks attendant with motorcycle riding in the event of any accidents including her single motorcycle accident.

Plaintiff alleged that the training course was negligently designed and that the design caused her accident.

Discovery established that defendants’ negligence, if any, did not rise to the level of gross negligence and thus the Waiver and Indemnification Agreement signed by Ms. Stout expressly and voluntarily released defendants of liability.

Stout, a 51 year old court reporter, claimed to have sustained trauma to her left knee and was diagnosed with a contusion microfracture to her left medial femoral condyle. She claimed $2,000 in medical expenses, $33,000 in future medical expenses, and $77,000 in current and future lost earnings and sought an additional $200,000 for pain and suffering.

Although the court’s ruling was consistent with California law and national appellate rulings regarding the validity of waivers in the context of sport and recreational activities, Ms. Stout has filed a Notice of Appeal.

Identity Theft Victim Successfully Defended in Pro Bono Case

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Mr. Steve Raap was undergoing chemotherapy when he was sued for alleged money owed for a credit card he never obtained. Needless to say, he did not need the stress involved with fighting a battle against the collection action and he came to Murchison & Cumming Partner Jefferson S. Smith for Pro bono assistance After several letters, and establishing that the address used for the account was in Georgia, the lawsuit was dropped.  At last report, Mr. Raap was cancer free and had returned to work as a postman in La Jolla.

Judgment Granted for Defense in Legal Malpractice Case

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Plaintiff client (also plaintiff in underlying wrongful termination case) alleged that the defendant’s attorney, represented by Casey Yim and Nancy N. Potter, did not communicate a time limitation on a settlement proposal by the defendant in the underlying case. The attorney had e-mails to the plaintiff transmitting the proposed settlement agreement, and making reference to the time limitations set forth in the settlement document itself, and in the opposing counsel’s e-mail transmittal correspondence.

On the day of the deadline, the defendant’s attorney sent another e-mail to the plaintiff, again requesting that she sign the settlement document immediately, and again referencing the deadline that afternoon. Plaintiff e-mailed the attorney back, stating that she had been re-thinking the settlement, that she wanted to change some of the terms; and as to the time deadline, she said: “Make them wait”.

The deadline came and went, and attorney continued to try to negotiate for the new terms requested by client, but opposing counsel declined. Thereafter, a Motion for Summary Judgment was granted, dismissing plaintiff’s case.

Defendant’s attorney filed a claim for legal fees due, and the plaintiff filed a separate claim for legal malpractice. Arbitrator granted defense award, in favor of defendant’s attorney. Arbitrator also granted defendant attorney his costs and arbitration fees.

Court Grants Summary Judgment Motion, Exonerating Murchison & Cumming Client in Construction Area Accident Lawsuit

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M&C attorneys Guy R. Gruppie, Corine Zygelman and Anastasia K. Mazzella recently won summary judgment for defendant R. J. Noble Company in a personal injury action that arose out of an accident that occurred when plaintiff allegedly tripped and fell on a construction sign while attempting to apparently get to her mailbox.

Judge Robert J. Moss of the Orange County Superior Court ruled as a matter of the law, the sign did not constitute a dangerous condition but even if it did, it was “open and obvious” to Mary Harringer, who suffered multiple injuries including a concussion in the May 5, 2005 incident.

Defendant’s moving papers called into question that plaintiff was in fact trying to get to the mailbox at her address and argued that whether or not Ms. Harringer’s attention was focused on oncoming traffic–rather than the sign–was irrelevant to the assessment of whether it was either a dangerous condition or open and obvious one.

Key evidence elicited in discovery included an admonition from the plaintiff, a retired medical technician, that she was first aware of the sign as much as three months before the accident allegedly occurred.

At the time of the accident, R. J. Noble, one of Orange County’s most respected contractors, was performing road rehabilitation work pursuant to a contract with the City of Costa Mesa.

Defendant will seek recovery of a substantial cost bill.

Contractor Not Liable in Mold Matter

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Physician plaintiff owned an ocean front condominium in Long Beach.  Plaintiff alleged water intrusion from upstairs unit’s master bath area, resulting in extensive mold and adverse health effects preventing plaintiff from working as a physician.  Our client replaced the upstairs bathtub and shower enclosure.

Following our expert’s testing of the bathtub and shower, Daniel G. Pezold, Michael J. Nunez and Adrian J. Barrio filed a Motion for Summary Judgment, which was joined by a defendant who earlier inspected the upstairs unit. The court granted our motion and the Joinder. The Homeowner’s Association subsequently settled with the plaintiff. The estate of the owner of the upstairs unit proceeded to trial. The time for appeal of the Motion for Summary Judgment has passed.