Case studies and results details

Trial Victory in Product Liability Case

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After six years of litigation and a week in trial, a dismissal with prejudice was entered for defendant Louisville Ladder Company (Louisville) due to impeachment evidence against Plaintiff Richard Skinner (Skinner). Friedrich W. Seitz and Kelsey L. Maxwell represented the defendant.

The case began in Federal Court on May 6, 2016, when the plaintiff sued the defendant Louisville Ladder Company because of a fall from a ladder on May 18, 2014. The defendant admitted the ladder had a manufacturing defect but argued the defect did not cause the plaintiff to fall. The plaintiff suffered a severe injury shattering his left calcaneus. On the eve of trial, the Court granted the defendants motion to dismiss based on the plaintiff’s lack of standing as he had filed for bankruptcy without revealing this lawsuit which had become an asset of the bankrupt estate for the trustee in bankruptcy only to pursue. The plaintiff appealed the ruling and on January 9, 2019, the 9th Circuit affirmed the dismissal with prejudice.

The bankruptcy trustee filed a case in state court in 2018 after the Statute of Limitations had had run, alleging the same products liability claims, waited a year before serving Louisville with the lawsuit in January 2019. Louisville’s Demurrer based on the Statute of Limitations and failure to timely serve was denied the Court holding the Statute of Limitations was equitably tolled while the Federal action was pending The case was set go to trial on March 20, 2020, when the pandemic shut down the Court and was re-set for April 28, 2022.

In deposition and in trial, the plaintiff testified since the accident he is in constant excruciating pain, cannot walk more than 10-14 steps holding on to a railing, has extreme pain walking uphill, downhill, on rocks, uneven surfaces, step up from the road to the sidewalk, cannot walk more than a block, and walking from the parking lot to the store which is the reason he has a disabled parking placard. He testified his pain and limitations have been consistent and has kept him from working since the date of the accident. He denied participating in post-accident recreational activities specifically any hiking or having been in the mountains. Before trial, Louisville’s investigator discovered a photograph of the plaintiff on top of the 8,000-foot Half Dome in Yosemite, five years after the accident and an October 2019 permit issued to him to access Half Dome. After confirming Skinner understood he was testifying under oath and understood the meaning of the oath he had taken and reading into the record for the jury the instructions given to him relating to the oath he took before testifying in deposition he was confronted the with the blown-up photograph on top of Half Dome. Attempting to question the date of the photograph he was confronted with a blown-up photograph of the October 2019 permit issued to him. Additional photographs were shown to the jury of different stations up the mountain including the last pitch a 45-degree bare granite surface requiring the use of cables to ascend to the top. After Skinner admitted the hike to the top and back took 18 hours Court stopped the trial, excused the Jury, and advised the plaintiff of his 5th Amendment rights. Before the jury returned, the plaintiff agreed to a dismissal with prejudice for a waiver of costs.

Motion for Summary Judgment in Elder Abuse Case

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A motion for summary judgment was granted in favor of Veterans Rideshare, a unique transportation company based in Southern California, serving greater Los Angeles and Orange counties. Lisa D. Angelo and Scott J. Loeding of Murchison & Cumming, LLP represented the defendant.

Judge Brazile from the Los Angeles Superior Court initially granted the MSA as to Elder Abuse and Unruh Act claims, then, three months later, granted the rest of the motion as to the wrongful death claim. After the plaintiff’s pathologist, who submitted a declaration in opposition to the motion on behalf of the plaintiff, was deposed. The court found no causation between the plaintiff’s fall and his subsequent death nearly a year later. The court also rejected the pathologist’s brain damage theory and his entire declaration.

Motion of Summary Judgement Granted in Slip and Fall Case

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A motion for summary judgment was granted by Federal Court Judge Dolly Gee in favor of a store owner in a premises liability case. Lisa D. Angelo and Scott J. Loeding of Murchison & Cumming, LLP represented the defendant.

The case concerned a slip and fall over alleged water that had been spilled on the floor. Video surveillance showed that in a separate room around the corner from where the fall took place the defendant’s employees were cleaning up something on the ground with towels and left a mound of towels on the floor. The court ruled that even if the defendant was negligent in one part of the store, that did not mean that they were negligent in the place where the plaintiff fell and there was no causal link between the plaintiff’s fall and the alleged spill of water leakage around the corner. Consequently the court granted a summary judgment in favor of the store owner.

Murchison & Cumming Names New Partner in the Los Angeles Office

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Murchison & Cumming, LLP is pleased to announce that Kelsey L. Maxwell has been elevated to Partner. Kelsey focuses her practice on the areas of general liability, product liability and specialty tort including habitability and discrimination claims. Kelsey approaches every case with a fresh perspective, always considering what particular course of action would be best for her clients – whether they are individuals or large companies. She prides herself on working with clients who are new to litigation, and easing their fears and anxieties during what can be a stressful experience.

“We are very proud to welcome Kelsey to our partnership. We look forward to a long and successful tenure at our firm,” said Dan L. Longo, Managing Partner.

Kelsey is a graduate of The University of Arizona (B.A.) and Chapman University, Dale E. Fowler School of Law (J.D.). She started with the firm as a summer associate at M&C’s Orange County office in 2012 and 2013 continuing on as a post-bar clerk in Los Angeles beginning in 2014. Having started undergraduate school at 17 and graduating in three years, she passed the California Bar Exam at only 23 and became a practicing attorney at M&C that same year. Among her many accomplishments, Kelsey is most proud of being a wife and new mom to her one year old son.

Motion for Summary Judgment Granted in Breach of Contract Case

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A motion for summary judgment was granted in favor of Community Action of Ventura Inc. (“Community Action”), a nonprofit organization assisting low income individuals to weatherize their residences to be more energy efficient. Lisa D. Angelo and Christy Gargalis of Murchison & Cumming, LLP represented the defendant.

In 2015, Community Action assisted homeowners in Oxnard, CA to replace two windows in their home. About six months after the window installation and a heavy rainfall, one of windows leaked and damaged hardwood flooring in the room where the window was installed. Community Action agreed to hire the plaintiff Jose F. Garcia to repair the flooring and walls in the area where the energy efficient window leaked.

After Garcia began work, he and the homeowners agreed to expand the scope of the repairs to include much more than what was identified in the original estimate including new hardwood flooring throughout the home. Both Garcia and the homeowners believed Community Action would pay for the additional work because a non-managerial employee from Community Action occasionally came to the property to check on the progress of the work. About a month after completing the work, Garcia submitted a final invoice to Community Action. Because Community Action had not agreed to pay for any work beyond what was submitted in Garcia’s original estimate, Community Action refused to pay Garcia’s second invoice. Garcia sued Community Action for (1) Breach of Contract; (2) quantum meruit; (3) work, labor and material; (4) work, labor and services; and, (5) unjust enrichment

After two years of litigation, Community Action filed a motion for summary judgment as to all of Garcia’s claims. After a hearing on the motion, the court held that Garcia’s breach of contract claim failed because the only viable contract that was entered into by the parties was for limited repairs to the floor by the leaking window and Community Action was not liable for additional costs to which it did not agree. The court further held that because Community Action established that the employee who occasionally visited the home to observe the status of Garcia’s work was a non-managerial employee, he lacked actual or ostensible authority to bind Community Action to authorize the expansion of Garcia’s work at the property. As to the remaining causes of action, the Court found that because Community Action did not own the subject property, it did not obtain any benefit from the additional work Garcia performed at the property.

Defense Verdict in Alleged Real Estate Fraud Case

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On November 12, 2020, a fully masked Orange County jury, which was seated about the courtroom, including the gallery, returned a Defense Verdict in favor of Rajeswari Vunnamadala. Murchison & Cumming, LLP Partner Lisa D. Angelo tried the case. Senior Associate Darin W. Flagg provided law and motion assistance and Associate Vedang J. Patel provided trial assistance over the course of the three-week trial.

The plaintiff Hymavathi Kunamneni sued Vunnamadala, her former best friend of 34 years, for Intentional Misrepresentation, Negligent Misrepresentation, Constructive Fraud and Breach of Fiduciary Duty in connection with Kunamneni’s belief that Vunnamadala caused her to make bad investment decisions and in so doing, Vunnamadala accepted large sums of money from Kunamneni to finalize her property purchases for her in India. Vunnamadala vehemently denied each and every allegation set forth by Kunamneni.

The unique case concerned the sale of three lots of land in India. In addition to being Plaintiff’s best friend, Vunnamadala was a licensed real estate agent in Orange County who had previously worked as the plaintiff’s agent and helped her buy and sell real estate in Orange County in the early 2000s. Vunnamadala denied working as Kunamneni’s agent or helping her buy any of the Indian properties she now regrets purchasing between 2008 and 2011. In 2015, Kunamneni began to voice regret and concern about the value of her properties and started to accuse Vunnamadala of tricking her into making bad investment decisions in India. Kunamneni also began to threaten Vunnamadala and bad mouthed Vunnamadala in India as well as in Orange County.

Defense real estate expert Alan Wallace, Esq. testified that in the absence of an agency relationship between the parties, there can be no breach of fiduciary duty. To establish an agency relationship there had to be an express written agreement between the parties or conduct that implied an agency relationship existed. Because there was no evidence of an express written agreement after 2003 (when Vunnamadala was Kunamneni’s real estate agent in Orange County, CA) and the conduct of the parties did not establish consent to enter into an agency relationship, no agency existed between Kunamneni and Vunnamadala for any of Kunamneni’s Indian property purchases. Wallace also observed there was no evidence of any commission earned by Vunnamadala in exchange for working as Kunamneni’s agent in India. This further showed the parties did not have an agent/client agreement between them. Defense Indian law and Indian real estate expert Monisha Coelho further explained that none of the Indian real estate documents produced at trial showed that Vunnamadala was Kunamneni’s agent and simple acts such as going to India’s registration office to drop off and pick up real estate documents for Kunamneni did not create an agency relationship between the parties.

After a three-week trial, the jury took less than three hours to find Defendant Vunnamadala not liable for any of the fraud-based claims Kunamneni alleged including her claim for punitive damages.

Motion for Summary Judgment Granted in Products Liability Case

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Judge Curtis A. Kin of the Los Angeles County Superior Court granted a motion for summary judgment in a products liability case against Mountville Mills, Inc. (MMI), a floor mat manufacturer. The motion was prepared and argued by Matthew E. Voss and the handling attorney for this matter was Lisa D. Angelo.

MMI is a manufacturer of floor mats used in the restaurant industry and other businesses across the U.S. The plaintiff had purportedly sustained serious physical injuries after a trip and fall accident at the entrance of a restaurant in Pasadena, California involving a mat manufactured by MMI. She alleged causes of action against MMI for: 1) Products Liability; 2) Breach of Implied Warranty of Fitness; and 3) Negligence.

The Court found that the plaintiff had failed to raise any triable issues of material fact and submit evidence showing a defect in the mat, or conduct constituting a breach of warranty or breach of duty by MMI. Thus, the plaintiff could not establish her causes of action against MMI. The Court found the declaration of the plaintiff’s expert, Brad Avrit, submitted in opposition to the motion, unpersuasive because Avrit did not test the mat, request a sample mat for testing, inspect the accident site, and his opinions were not based upon personal knowledge.

Wildland Fire Litigation Team Gets Summary Judgment Affirmed by Court of Appeal in Favor of Hotel and Golf Course in Poinsettia Fire Case

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Richard C. Moreno and Gina E. Och, members of the Wildland Fire Litigation practice group, secured a victory for their client, a hotel with a golf course on its property, who was sued by adjacent property owners and insurers affected by the Poinsettia Fire.

In 2014, a fire originated on a hotel’s golf course and spread to properties beyond the hotel and golf course. Plaintiffs sued the hotel for negligence, trespass, and nuisance. The hotel moved for summary judgment on the elements of duty and causation. The hotel argued that the it owed no duty to the other property owners to minimize fire hazards by restricting smoking and maintaining the native vegetation on the golf course, and the hotel’s conduct was not the cause of their damages. The trial court granted the summary judgment motion. A subrogation plaintiff appealed.

Recently, the California Court of Appeals affirmed the trial court’s decision to grant summary judgment in favor of the hotel. Without deciding the issue of duty, the appellate court concluded that the hotel met its burden on summary judgment of showing plaintiff could not establish the causation element of its claims of negligence, trespass, and nuisance, and plaintiff failed to meet its corresponding burden of establishing there was a triable issue of material fact as to causation.

Plaintiff offered several theories on the element of causation. Initially, plaintiff argued the hotel caused its damages by permitting smoking on its golf course or by using combustion-engine maintenance and beverage carts not equipped with spark arrestors. However, all fire cause and origin investigators, including the Fire Department’s fire investigator and plaintiff’s own experts, agreed the cause of the fire was undetermined. Moreover, plaintiff’s causation expert’s testimony characterized the embers and exhaust particles from either alleged instrumentality as only possible causes, not probable causes, meaning neither was more likely than not the cause of the fire.

Alternatively, plaintiff argued the hotel caused its damages by failing to adequately irrigate and maintain the native areas at or surrounding the golf course to reduce the likelihood of the fire spreading from the golf course to the adjacent properties. However, plaintiff’s fire fuels management expert conceded that, had the hotel done everything the expert recommended to maintain the native areas, there was a high likelihood a lit cigarette dropped in the same area under the same conditions would have still caused a fire to start and spread. In other words, if the same result would have occurred regardless of the hotel’s conduct, then its conduct was not a substantial factor in causing plaintiff’s damages.

For these reasons, the Court of Appeal affirmed summary judgment in favor of the hotel.

Defense Verdict Upheld on Appeal

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Sedigheh Ansari and Abbas Taheri appealed from a judgment in favor of El Proyecto Del Barrio, Inc. and El Proyecto Del Barrio Foundation. The appellants contended the trial court erred when it failed to instruct the jury that it could consider the failure of respondents to follow their own alleged policies and procedures as evidence of negligence. During trial the defendant contended that the policies and procedures plaintiffs were relying on were not, in fact , the policies and procedures of the defendant. The Court of Appeal found no error in refusing the proffered jury instruction and affirmed the judgment in favor of El Proyecto. The appeal was handled by Edmund G. Farrell, III.

In the case, the plaintiff, a 77-year-old woman, allegedly tripped and fell over a concrete wheel stop located in the disabled parking stall section of a parking lot owned by a not-for-profit medical clinic (“Clinic”) in Winnetka, CA. As a result of the fall, the plaintiff sustained a left arm fracture and two years after her fall, underwent a total shoulder replacement surgery. Notably, there were no witnesses to the fall other than the plaintiff’s son and her 94 year old husband who only saw her as she was falling to the ground, but did not actually see her trip over the wheel stop. The plaintiff filed an original complaint for negligence and premises liability against the clinic and her husband filed a claim for loss of consortium.

After an eight day jury trial which included testimony from two liability experts, two shoulder surgeons, an upper extremity expert, two life care planners, an economist, an architect, and six percipient witnesses, the jury took less than 45 minutes to render a defense verdict in favor of the defendant.

For more information on the case click here. To view the appellate decision click here.

Defense Verdict for Skilled Nursing Facility Against Elder Abuse Claims

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A Los Angeles Superior Court Jury returned with a defense verdict in favor of a skilled nursing facility based in Ventura County after a 10-day trial in which plaintiffs sought to recover more than $15 million in compensatory damages as well as punitive damages. Murchison & Cumming Senior Partner Dan L. Longo, Esq. and Partner Mary C. Trinh, Esq. represented the defendant skilled nursing facility and defendant corporate entities.

The plaintiff, then age 79, was admitted to the skilled nursing facility to recover from a brain surgery that was performed after a series of falls at home. Within the first month of admission, the plaintiff was transferred out twice and hospitalized for medical issues relating to her significant pre-existing medical problems, which included diabetes, contractures, recurrent urinary tract infections, osteomyelitis, deep vein thrombosis and partial paralysis. On admission to the skilled nursing facility, the plaintiff was noted to have four skin ulcers. Three months later, three of the skin ulcers healed but the sacral decubitus ulcer evolved from a Stage II to an unstageable/Stage IV ulcer.

At trial, the plaintiff contended that purported poor care, reckless neglect and the defendants placing “profits over people” led to the progression of the sacral decubitus ulcer from a Stage II to an infected, life-threatening, “baseball-sized” Stage IV ulcer. The plaintiff’s daughter and son asserted separate claims for negligent infliction of emotional distress and intentional infliction of emotional distress attributed to the neglect of their mother and the facility’s alleged attempts to “cover up” the progression of the sacral decubitus ulcer.

There was no dispute that the sacral decubitus ulcer evolved. However, the defense successfully argued that the progression of the sacral ulcer was medically unavoidable due to the plaintiff’s significant underlying serious health issues which, combined with the location of the ulcer, interfered with the healing process. Mr. Longo and Ms. Trinh also presented evidence that an interdisciplinary team closely monitored and treated the ulcer and that the family received regular updates regarding the plaintiff’s condition and the care provided.

The jury returned with a defense verdict as to all causes of action after only three hours of deliberation. The case was tried before Hon. Elizabeth R. Feffer in the Stanley Mosk Courthouse, Downtown Los Angeles.