Case studies and results details

Westland Industries NOT Responsible for Hiring Erratic Security Guard

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A convenience store clerk at A&D Mini Mart sued Westland Industries, Inc., represented by Robert Clayton, Gina E. Och and Holly Boyer, after the store’s security guard allegedly assaulted him by pointing a gun at his chest. The store clerk alleged that Westland negligently hired and retained a “dangerous” security guard with “violent propensities” and a “bad temper”. The clerk also claimed that he had suffered sever mental anguish because of the incident and had to seek medical treatment as a result. In addition to his mental distress, plaintiff also claimed that he was unable to work and suffered loss of earnings.

Contrary to plaintiff’s allegations, R.Z.P. Security Patrol employed the security guard, not Westland Industries, Inc. Westland argued that it could not be liable for the negligent hiring and retention of the security guard because the security guard was never its employee; Westland did not own R.Z.P. Security Patrol; and Westland did not provide security services for A&D Mini Mart. Westland simply owned the building where A&D’s Corporate Offices were located. Also, the facts clearly illustrated that Westland did not own or control the premises; thus, it argued that it could not be liable for the intentional acts of third parties.

The court concluded that Westland’s evidence was sufficient to shift the burden of proof as to the allegations, including employment and ownership issues, ruling in favor of Westland.

Defense Verdict Obtained in Binding Arbitration

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Robert M. Scherk of Murchison & Cumming’s San Diego Office recently obtained a defense verdict in a binding arbitration in a personal injury action where a 59 year old female plaintiff sought damages for personal injuries, pain and suffering, loss of earnings and property damage all of which, plaintiff alleged resulted from an automobile accident where there was no contact between plaintiff’s vehicle and defendant’s vehicle.

Plaintiff and defendant were traveling in opposite directions on a winding road when defendant came upon a piece of plastic or rubberized piping in the road. Unable to avoid running over the piece of pipe, defendant struck it with his truck at which time it bounced up towards plaintiff’s vehicle, striking plaintiff’s left front hubcap and bumper guard and causing the hubcap to come off of plaintiff’s car.

The incident did not cause plaintiff to strike any portion of the interior of her vehicle or to lose control, and there was no contact between the two vehicles. Plaintiff claimed the piece of pipe weighed at least 50 pounds and came “flying out of defendant’s pickup truck” before striking her vehicle. The defendant and his passenger claim that the pipe weighed no more than 10 to 12 pounds and had never been in the defendant’s truck prior to the incident. After the incident plaintiff drove some five miles to McDonald’s for breakfast before going home and calling the CHP to have a report prepared. The report supported defendant’s version of the accident causing plaintiff to contact the CHP officer’s supervisor, attempt to have the CHP officer fired, and write a lengthy letter to her state senator. Plaintiff also prepared her own supplement to the CHP report containing her version of the events.

After the subject incident, plaintiff had 73 chiropractic visits over a one and a half year period and alleged that she was unable to work as a substitute teacher for some five months. Defendant claimed that plaintiff could not possibly have been injured by this incident, that her medical treatment was fraudulent on its face, and that she had no significant prior work history as a substitute teacher to support her loss of earnings claim.

The parties agreed to a binding arbitration with a high and low figure. The arbitrator found that plaintiff failed to sustain her burden of proof with respect to determining that the defendant was negligent, and that even if she had sustained her burden of proof with respect to liability, the issue of causation was not established by any evidence presented by the plaintiff “nor as seen in the light of everyday common sense.”

The arbitrator also stated that plaintiff failed to prove causation and that the bulk of plaintiff’s claimed damages were speculative and “not proven by any standard approaching the preponderance of evidence.”

A defense verdict was rendered on the day following the binding arbitration.

Another Win for Freightliner in Lemon Law Action

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Marking his second win for Freightliner in the past two years, Richard C. Moreno, successfully defended the chassis corporation in Song-Beverly Lemon Law action in Orange County, California.

Plaintiff, Kathryn Holmes, had sued Freightliner Custom Chassis Corporation alleging that it had breached the terms of its written warranty covering the chassis portion of her motor home. She also filed suits against Cummins Corporation, the company that manufactured the engine and Rexhall Industries, who manufactured the coach portion of the motor home.

Ms. Holmes purchased the subject motor home from Irvine R.V. and contended that certain representations were made to her regarding the motor home, including its year and engine size. She later found out that Irvine R.V. had misrepresented the engine size by informing her that the vehicle was equipped with a 300 h.p. Cummins engine when in fact, it was equipped with a 230 h.p. Cummins engine. One year after the purchase, Ms. Holmes experienced a massive engine failure, which required a replacement of the engine.

Freightliner Custom Chassis Corporation prevailed on a motion for summary adjudication on the issue of whether or not Freightliner had been given a reasonable number of attempts to repair any alleged defects and/or non-conformities as is required under the Song-Beverly Lemon Law statute. The court also granted Freightliner’s motion for summary judgment on the plaintiff’s cause of action under the California Commercial Code.

At trial, Ms. Holmes presented evidence regarding the manner in which the engine failed and the circumstances surrounding the failure. Freightliner argued that the engine failed as the result of a coolant leak at the heater core and the heater core was not a component part manufactured, or installed, by Freightliner and there fore did not fall under its expressed warranty.

The judge granted Freightliner’s motion for non-suit on the grounds that plaintiff had not met her burden of proof as to which of the defendants was responsible for the engine failure.

Australian Company Prevails in Products Liability Case

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Friedrich W. Seitz and Eric P. Weiss of the Los Angeles office represented Action Sports Equipment Pty, Ltd., an Australian manufacturer of sporting goods and equipment in a product liability action. Action Sports manufactured mini-trampolines in Australia, which were distributed to the United States through Sports Supply Group, Inc. located in California. An Illinois school district purchased the mini-trampolines through Sports Supply Group for use at its schools.

During a gymnastics class, Ryan Murray, a student in the Illinois school district, attempted a flip on the trampoline and suffered a severe spinal cord injury. He sued Sport Supply and Action Sports in Illinois state court, his claim being valued in the $8-10 million range. Since Action Sports is an Australian company with no ties to the state of Illinois, it was dismissed from the Illinois action for lack of personal jurisdiction.

Thereafter, and during the pendency of the Illinois action, Sports Supply brought an action in California state court against Action Sports for indemnity, apportionment of fault and declaratory relief. Action Sports successfully demurred to the indemnity and apportionment causes of action on the grounds that they were not ripe (i.e. the causes of action did not accrue until Sports Supply paid a judgment or settlement to plaintiff in the Illinois action). That left declaratory relief as the sole cause of action. In essence, Sports Supply was asking for a judicial determination that if it was to be found liable on a products liability theory in the Illinois action, it would be entitled to indemnity from the manufacturer, Action Sports. In defense, Action Sports argued that in order for the court to make such a determination, certain factual issues would have to be decided in the Illinois action. In particular, the Illinois jury would have to determine whether Sports Supply altered, modified or assembled the trampoline prior to delivery to the school district. If so, Sports Supply would not be entitled to full indemnity.

The matter was tried before the California state court, without a jury. After reviewing the evidence and argument of counsel, the court ruled in favor of Action Sports finding that Sports Supply did not meet its burden of showing that it had not modified, altered or assembled the trampoline. Thus, the court could not make a determination as to the respective rights and liabilities of the parties.

Experts Agree that Epson Printer was Not Cause of Mysterious Fire Loss

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In a subrogation action arising out of a mysterious fire loss, Epson America, the manufacturer of electronic office equipment was sued by USAA for recovery of approximately $55,000 that USAA had paid to its insured on its claim.

After exchange of initial discovery, the parties agreed to permit each of their electrical engineering experts to inspect the equipment on the loss premises, in particular the printer made by Epson, to determine if physical evidence existed to suggest it was the source of an electrical fire. It was agreed that if such evidence existed, Epson would pay the damages claimed by USAA. However, if the printer box demonstrated no signs of fire origin, it was agreed that USAA would dismiss its suit in exchange for a waiver of costs and attorneys fees, with no further discovery.

After some negotiations regarding the inspection protocol, the inspection took place. The printer box was virtually pristine – meaning that Epson won the gamble and the case.

Epson America was represented by Guy R. Gruppie and Paul R. Flaherty of the firm’s Los Angeles office. Mr. Flaherty developed the testing protocol and worked closely with Epson’s expert to help obtain this excellent result.

Defense Judgment Granted in Assault and Battery Case

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In a case of “Whose version of the facts do you believe?”, workplace tensions developed into the catalyst for an assault and battery based lawsuit. In particular, Plaintiff Payne filed suit for assault and battery, negligent and intentional infliction of emotional distress and false imprisonment against his employer and one of its employees, WBGH and Mr. Morison, claiming that a three-week period of animosity culminated when defendant Mr. Morison, assaulted and battered him at The Caption Center on November 19, 1996.

Morison was an employee of The Caption Center, operated by WGBH Educational Foundation of Boston to prepare closed-captioning for a variety of television programs. Mr. Payne was an independent contractor who repaired video decks for The Caption Center. Prior to the incident, Mr. Payne and Mr. Morison had engaged in a series of telephone calls wherein Mr. Morison complained about the quality and promptness of Mr. Payne’s work. Each of the telephone calls ended with Mr. Payne hanging up on Mr. Morison. Following these telephone calls, Mr. Payne made arrangements to deliver and pick up video decks at The Caption Center only when Mr. Morison was not on duty, purportedly because he believed Mr. Morison to be angry with him and fearful that Mr. Morison might undertake physical violence against him.

On November 19, 1996, The Caption Center contacted Mr. Payne to advise him of a deck that needed to be repaired. Mr. Payne indicated that he would be in after 5:00 p.m. to pick up the equipment. Mr. Morison worked overtime that night, as he often did, and was instructed by his superiors to give Mr. Payne the tape deck if Mr. Payne arrived prior to Mr. Morison’s departure. As Mr. Morison was in the process of turning off his computer and packing up his things, an unidentified worker escorted Mr. Payne into Mr. Morison’s office. Words were exchanged and an altercation ensued inside the office.

At some point, Mr. Payne pushed the 70-pound VTR unit out of the office where he was seen by another Caption Center employee, Andrew Ebert, who testified at trial that he watched Mr. Payne walk to the elevator where he tripped over his own feet and fell on the video unit. Mr. Payne contended that defendant Morison chased him all the way down the hallway and hit him one more time at or near the elevator, which both Mr. Morison and Mr. Ebert denied. The defense denied all allegations, claiming that Mr. Payne was the instigator and initiator of any physical contact, that any physical contact was incidental, that plaintiff was never falsely imprisoned, and that he sustained no injuries in the alleged event.

Upon completion of Mr. Payne’s opening statement and testimony at trial, a non-suit was granted for both WGBH Educational Foundation and Mr. Morison with respect to the causes of action for negligence, negligent infliction of emotional distress and intentional infliction of emotional distress. At the close of all evidence, a directed verdict on the assault and battery cause of action was granted in favor of defendant WGBH Educational Foundation, due to the lack of evidence of its involvement in the incident and/or its ratification of the same.

The remaining claims as to Mr. Morison were submitted to the jury, which found in favor of Mr. Payne on the remaining assault and battery and false imprisonment counts, 10-2, awarding Mr. Payne only $500 on each cause of action – for a total verdict of $1,000. Defendants were represented at trial by Guy R. Gruppie and Heather L. Mills, with the assistance of Michael J. Nunez as law and appellate counsel.

NOTE: Prior to trial, defendants moved successfully in limine to exclude plaintiff’s use of experts due to the failure of plaintiff to designate experts pursuant to the provisions of Code of Civil Procedure §2036. Defendants also moved successfully in limine to exclude plaintiff from putting on any evidence of physical injury or economic loss where an expert was required to prove causation, due to the failure of plaintiff to designate experts.

The case had been arbitrated in August, 1998, with plaintiff being awarded $17,000. Plaintiff requested trial de novo and, therefore, in light of the trial result, may be subject to costs incurred by both defendants in excess of $25,000. After the first arbitration, the case had been ordered to limited jurisdiction court by now-retired Los Angeles Superior Court Judge Kurt J. Lewin, but plaintiff filed a successful writ that reinstated the case for trial in an unlimited jurisdiction court.

What’s in a Name? Defense Judgment in Intellectual Property Dispute Involving Names of Tae Kwon Do Facilities

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On September 24, 2002, in a trademark infringement and unfair competition dispute, Corine Zygelman of Murchison & Cumming’s Los Angeles office received a defense judgment for Jimmy Graesser and his businesses, known as “National TKD.com”.

In 1999, Mr. Graesser owned and operated a tae kwon do training facility in Laguna Niguel, California under the name “National Tae Kwon Do Studio”. In 1996, Plaintiff, Chun Woo Park had opened a tae kwon do training facility, in nearby Aliso Viejo, California using the name “National Tae Kwon Do Academy”.

Both training facilities operated under their respective names until October 2000, when Mr. Park sent Mr. Graesser a cease and desist letter claiming that the name “National Tae Kwon Do Studio” was confusingly similar to the name of his facility, “National Tae Kwon Do Academy”. After some debate, Mr. Graesser agreed to change the name of his business to “National TKD.com” and the change was officially made in 2001. Mr. Park, unsatisfied with Mr. Graesser’s new business name because it still contained the word “National”, proceeded with his lawsuit, seeking an injunction requiring Mr. Graesser to further change the name of his business.

During the bench trial, Mr. Park contended that because he had filed a fictitious business name and continually used it since its filing, he in essence owned the name “National Tae Kwon Do Academy”. He also claimed that the name of his business and that of Mr. Grasser’s, “National TKD.com” were confusingly similar.

After considering all the evidence, the Court ruled that although the initial use of the name “National Tae Kwon Do Studios” was indeed confusingly similar, once the name had been changed to “National TKD.com”, there was no likelihood of confusion. In entering judgment in favor of Mr. Graesser, the court found that the testimony did not provide any evidence that there was confusion and refused to issue the requested injunction.

At trial, Plaintiff had attempted to call a “surprise” witness to testify on the issue of whether the names were confusingly similar. Ms. Zygelman was successful in having this witness precluded from testifying altogether. In addition, counsel for plaintiff attempted to introduce audiotapes, which were “created” within 30 days of trial, to allegedly demonstrate customers calling Mr. Park when they intended to contact Mr. Graesser. Once again, Ms. Zygelman was able to preclude the introduction of the tape and any associated testimony.

Through this victory, Ms. Zygelman preserved Mr. Graesser’s right to call his business “National TKD.com”, thereby avoiding the expenses of phasing in a new name and allowing him to maintain the client base and solid reputation that he had developed.

Wisda-Fisher v. IMAX Corp. et al

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Guy R. Gruppie, Joshua M. Rosen and Rebecca J. Sobie obtained summary judgment on behalf of their client, the California Science Center in a case arising out of a serious slip and fall accident that occurred at the Imax Theatre in Exposition Park.

Plaintiff contended that inadequate lighting and the configuration of the theatre created a dangerous condition that led to her breaking her right leg in a fall between seats and stairs. She had demanded $700,000 to settle her case.

The Center’s motion drafted by Rebecca Sobie was based on the arguments that it did not own, maintain or control the premises and that if a dangerous condition existed, it was the responsibility of others. The Center argued alternatively that since the theatre was constructed, more than $1 million patrons had successfully used the seats and stairs without incident.

The Court found that as a matter of law, the Center owed plaintiff no duty, and entered judgment in its favor. An appeal is anticipated.

Nonsuit Granted in Breach of Settlement Agreement

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In a breach of settlement agreement case brought by a lawyer and his law firm, Russell S. Wollman and Barbara McCully successfully moved for nonsuit after plaintiffs’ opening statement, which is rarely granted.

McCully and Wollman brought a motion in limine to exclude evidence of the written settlement agreement and any other written or oral communications made by the parties during the mediation based on Evidence Code section 1119, stating that evidence of anything said or any writing prepared in the course of, or pursuant to, a mediation is inadmissible.

Section 1119 can be overcome if all mediation participants agreed in writing or orally to disclose communications or if there was a binding settlement agreement signed by all participants for the purpose of showing fraud, duress or illegality on an issue.

It was undisputed that the parties executed a Confidentiality Agreement at the mediation, specifically outlining all communications during the course of the mediation were confidential, not subject to discovery, and could not be introduced into evidence.

Unable to show a statutory exception, plaintiffs contended three things. First, defendants were judicially estopped from claiming the protection afforded by section 1119 because defendants had brought a motion for judgment on the pleadings on grounds different than the inadmissibility of the settlement agreement. Secondly, defendants had waived the protection afforded by section 1119 when they referred to the settlement agreement in an unsuccessful motion for summary judgment brought pursuant to section 1119. Lastly, plaintiff felt these issues should be determined by the jury.

The court agreed with defendants that because estoppel and waiver are equitable doctrines, they were properly determined by the court, not a jury.

The court also agreed with defendants on the issue of waiver, finding that merely because defendants authenticated the settlement and confidentiality agreement in the motion for summary judgment and had not waived the protection of section 1119. See for example, Southern California Edison Co. v. Public Utilities Commission, 85 Cal.App.4th 1086, 1107 (2000) (waiver is the intentional relinquishment of a known right; burden is on party claiming waiver to prove it by clear and convincing evidence).

The court further agreed that defendants were not judicially estopped by virtue of their prior motion for judgment on the pleadings because the defenses were not inconsistent.

Based on the above, the court granted defendants’ motion in limine and precluded plaintiffs from introducing evidence of the written settlement agreement and any communications made during the mediation.

Plaintiffs made their opening statement and Wollman moved for nonsuit on the ground that plaintiffs could not present any substantial, admissible evidence to support a verdict for plaintiffs under a breach of contract theory and that plaintiffs could not establish that a contract had been entered into by the parties. After giving plaintiffs the opportunity to reopen their case and plaintiffs’ counsel’s admission that he had no admissible evidence upon which to proceed, the court granted defendants’ nonsuit.

Summary Judgment Granted on Claim of Legal Malpractice Arising out of Underlying Qui Tam Action

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Robert M. Scherk and Scott J. Loeding of Murchison & Cumming’s San Diego office successfully moved for summary judgment in a legal malpractice case where the plaintiff sued six sets of attorneys in connection with two underlying lawsuits, one in which she was a plaintiff and one in which she was a defendant.

In the underlying Qui Tam, or federal whistle blower action, plaintiff retained a prominent San Diego law firm to prosecute a Qui Tam action on her behalf arising out of what she claimed were fraudulent billings to Medicare being made by a group of doctors for whom she formerly worked. Prior to plaintiff retaining our clients and two other attorneys to continue her representation in the Qui Tam action, she had entered into both a contingency and an hourly agreement with a private investigator to assist her in obtaining information necessary to succeed in the Qui Tam action. When their personal and professional relationship went sour, plaintiff claims to have fired the investigator, but he said that he continued to perform services on her behalf and was at least partially responsible for the successful outcome of the Qui Tam case.

After the Qui Tam action was settled by our clients for $2,000,000.00, with 29 percent of that amount being awarded to the plaintiff, she was subsequently sued by the investigator for breach of contract for not having paid the various bills he had submitted to her and for not honoring their contingency agreement. Although plaintiff could have settled the breach of contract action against her for somewhere between $25,000.00 and $50,000.00, she chose not to do so and that matter proceeded to trial resulting in a judgment in favor of the investigator and against plaintiff in the sum of approximately $230,000.00. Plaintiff, thereafter, unsuccessfully appealed that ruling and has filed two personal bankruptcies.

Almost four years after the Qui Tam action was settled and almost three years after the breach of contract judgment against plaintiff, she filed her complaint for legal malpractice naming the four attorneys who represented her in the Qui Tam action and three additional sets of attorneys who defended her in the breach of contract action. Plaintiff’s claims against her Qui Tam attorneys, including our clients, were that the Qui Tam statute provided for the Qui Tam defendant to pay reasonable costs in connection with either the settlement of the Qui Tam action or a verdict in favor of a plaintiff in a Qui Tam action and that her attorneys should have ensured that the investigator’s fees were paid at the time the Qui Tam action was settled. Plaintiff also claimed that despite waiting almost three years after the judgment against her in the breach of contract action before filing her legal malpractice case, that she did not discover the relevant Qui Tam statute until doing some legal research on her own in a law library during the appeal of the breach of contract judgment against her. As such, plaintiff claimed her legal malpractice action was timely filed.

Plaintiff claimed special damages in the amount of approximately $450,000.00, including the $230,000.00 breach of contract judgment against her, interest on that judgment, attorneys fees to appeal that judgment, bankruptcy attorney fees and costs, as well as other miscellaneous damages.

The defense argued in the Motion for Summary Judgment that there was an abundance of evidence that plaintiff’s claim for legal malpractice was barred by the statute of limitations contained within C.C.P. Section 340.6 and that plaintiff could not produce evidence establishing any triable issue of fact as to causation. Plaintiff could not prove, or even raise, a triable issue to suggest that her investigator’s claim for fees and costs had been out in the open when the Qui Tam action was settled or that the Qui Tam defendant would have or could have paid any more to settle the case so that the investigator’s fees would have been satisfied.

The court granted the summary judgment motion because plaintiff could not establish causation and as a result ruled that it did not need to reach the issue of whether plaintiff’s complaint was barred by the statute of limitations.