Case studies and results details

Bench Trial Defense Judgment

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Following a three-day trial before the Hon. William G. Willete of the Los Angeles Superior Court, Torrance Courthouse, the Court ruled in favor of the Defense. Abraham Berger was lead counsel and Alexis B. Cruz was second chair at trial.

This matter arose out of the theft of a third-row seat from the plaintiff’s vehicle at a parking structure at the plaintiff’s employment at the Warner Center. The Warner Center property is owned and managed by Douglas Emmett 2000, LLC and the parking structures, consisting of over 6,400 spaces, are managed by ABM Parking Services, Inc. The plaintiff brought a Complaint for Negligence and Breach of Contract. The case centered on whether the defense breached a duty of reasonable care of the safety and security of the patrons at the property. In the instant matter, the plaintiff argued that the defendants breached their duty of care to the plaintiff in not having sufficient security measures at the Property which may have prevented the theft of the third-row seats in her vehicle. The plaintiff also argued that ABM breached its Parking Access Agreement by failing to provide reasonable security at the Property.

Following the close of the plaintiff’s case-in-chief, the defense moved for a Motion for Judgment under C.C.P. 631.8. The court granted the motion in its entirety, finding that plaintiff failed to sustain her burden to show a breach of the duty of care to her by the defendants and found that the evidence supported that the security measures were reasonable. If there was no breach, then there was no implied breach of the Parking Access Agreement. The court also found there was no breach of any express terms of the Agreement. In fact, the court found that the Agreement contained language which exculpated the defendants. As a result, the court agreed with the defense, granted the Motion for Judgment and dismissed the action.

Defense Verdict in Premises Liability Case

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A Long Beach jury returned a verdict in favor of the defendant, a local restaurant from Avalon, California. Murchison & Cumming Partner Lisa D. Angelo represented the restaurant in a five-day trial where plaintiff asked the jury to award her $5 million dollars.

The plaintiff fell upon a curb on the corner of Third St. and Catalina Ave. in the City of Avalon. Video surveillance from the defendant’s restaurant captured the fall. As a result of her fall, the plaintiff claimed she suffered a sciatic nerve injury to her back that required her to undergo physical therapy and two epidural injections. Her future medical damages claims included a spinal cord stimulator along with a battery pack that had to be replaced every five to seven years. According to the plaintiff’s medical expert, the cost of the stimulator and battery pack alone was $350,000.

At trial, the plaintiff testified that she fell as a result of “slime and sludge” that came from a roof drain pipe attached to defendant’s restaurant. Evidence at trial showed that defendant’s air conditioning unit, located on the restaurant’s roof, leaked water condensation that traveled from the unit, across the roof, down a roof drain and onto the City of Avalon’s sidewalk. The restaurant’s owner testified that he routinely changes the filter on the air conditioning unit and that it was properly maintained at all times.

The plaintiff’s liability expert, Brad Avrit, testified that the air conditioner’s water condensation picked up “contaminants” as it traveled across the roof and down the drain pipe to the City sidewalk. Mr. Avrit further opined that the “contaminants,” while resting on the City sidewalk, turned into an liquid substance that caused plaintiff to slip and fall. The only evidence the plaintiff produced to support her expert’s “contamination” theory was her own testimony, the video surveillance and a nighttime photo that she believed showed “slime and sludge” on the concrete.

Defense liability expert, Ned Wolfe, testified that the plaintiff fell as the result of a misstep. Having turned the video surveillance into still-shots, Mr. Wolfe effectively showed the jury that the plaintiff’s torso pitched forward at the time of her fall rather than backwards. These “body mechanics” demonstrate a “misstep” off the curb and not a slip upon slime, sludge or any other “contaminant.”

Both liability experts agreed: water on concrete does not create a slippery or dangerous condition.

The jury returned a 11-1 defense verdict in less than two hours after a five day jury trial. The jury answered “No” to the first question on the special verdict form as to whether Defendant was negligent. The case was tried before Judge Vicencia in the Long Beach Superior Court.

Positive Result in Premises Liability Case

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A California Superior Court granted a motion for discretionary dismissal in a premises liability case handled by Heidi C. Quan and Katelyn M. Knight.

The case arose from an incident that took place on August 3, 2012 at a fast food restaurant. According to the complaint, the plaintiff was using the restroom when a toilet paper dispenser dislodged and struck her in the face. The plaintiff filed suit on July 31, 2014, just a few days before expiration of the statute of limitations.

The plaintiff made eight attempts to serve the defendant in October and November of 2014, however the plaintiff made no efforts thereafter. In March of 2016, the plaintiff filed an ex parte application to permit service by publication. The Court did not issue an order until August of 2016, during which time the plaintiff made no effort to follow-up with the Court or effect service. Ultimately, the Court found that the plaintiff had not shown diligent efforts to effect service and denied the application. In September of 2016, the plaintiff attempted to effect service by mail with a notice and acknowledgement of receipt to another restaurant location, rather than to the defendant’s registered agent.

Murchison attorneys filed a motion for discretionary dismissal based on delay in prosecution. In addition to arguing that the plaintiff could not offer any reasonable justification for her failure to serve the defendant for more than two years, counsel argued that the defendant had been unfairly prejudiced by the delay as it no longer had records of the employees working at the restaurant at the time of the incident, video footage, restroom inspection records, or records of which toilet paper dispensers had been replaced in the more than four years since the incident occurred. The plaintiff’s counsel argued that the defendant knew of the incident shortly after it took place and therefore should have preserved any needed evidence, that the insurance company investigated the incident, and that service of process was impossible, impracticable or futile due to the fact that the defendant’s registered agent for service lives in a gated community. The Court disagreed and dismissed the case.

Motion for Summary Judgment Granted in “Dog-Bite” Case

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Judge Patricia Nieto of the Los Angeles Superior Court Grants Motion for Summary Judgment in premises liability / “dog-bite” case against local Pet Shop and animal rescue owner in a case handled by Lisa D. Angelo and Kelsey L. Maxwell.

Four days before the statute of limitations was to pass, on November 6, 2014, the plaintiff, a frequent visitor of a local pet supply boutique, brought a three-count complaint against the pet supply (“Defendant”) for Strict Liability, Negligence and Premises Liability. In her complaint, the plaintiff claimed that while on the defendant’s property, playing with several dogs, she suffered a baby dog scratch/bite from a 4 month old Maltese puppy who was in a dog pen and became jealous when the plaintiff stopped paying attention to him. Over the course of discovery, the plaintiff voluntarily dismissed her Strict Liability claim against the defendant as it was learned the defendant was not the “owner” of the Maltese and was simply allowing the dog’s owner to show the puppy in her store so it could be adopted. Evidence gathered further showed the defendant had no notice of “dangerous propensities” such that an attack or baby dog scratch was foreseeable by the puppy.

Despite the plaintiff’s dismissal of her primary claim under California’s “dog-bite” statute, the plaintiff proceeded with her lawsuit against the defendant under a premises liability theory. In order for a property owner to be liable for negligence or premises liability, however, the plaintiff must prove the defendant had notice of a dangerous condition on its property which, in this case, meant the plaintiff had to prove the defendant had knowledge of violent propensities of the animal in question. When evidence gathered through discovery showed the Maltese was “sweet natured,” the defendant filed a motion for summary judgment as to the remaining claims alleged by the plaintiff in her complaint.

On September 29, 2016, after two hearings, consideration of a 60 paragraph expert declaration and a supplemental expert declaration offered by the plaintiff’s “dog training expert,” the Court granted the defendant’s motion for summary judgment in its entirety. First the court ruled most of the plaintiff’s expert declaration was irrelevant and inadmissible. Then, the court held, there was no evidence to show notice of the dog’s violent propensities or the existence of facts that would make the behavior foreseeable.

Positive Result in Premises Liability Case

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A plaintiff was injured during the course and scope of his employment at a scrap metal facility when the circuit breaker box exploded as he tried to turn on a compressor. He suffered severe burns and disfigurement to his hand. Although he received full workers compensation benefits, the plaintiff filed a civil case against Murchison & Cumming’s client, the President of the company who is also the property owner, and his son, the General Manager, for Negligence, Premises Liability and violations of Civil Code 52.1 alleging M&C’s client interfered with plaintiff’s rights by threat, intimidation and/or coercion.

The Hon. Donald Alvarez in San Bernardino granted the Motion for Summary Judgment on behalf of M&C’s client, under a two prong analysis, finding undisputed evidence that the Workers Compensation Act provided an exclusive remedy as to the client, a co-employee with no prior notice of a defect, and there is no liability for our client as a property owner, as the undisputed evidence showed our client had no ownership or control of the subject equipment. Furthermore the court found no cognizable claim for any violation of Civil Code 52.1. The plaintiff had demanded a high six-figure settlement at mediation. The matter was handled by Partner, Nanette G. Reed and Katelyn M. Knight.

Defense Verdict in Favor of Property Management Company

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A Van Nuys jury issued a 12-0 verdict in favor of a property management company, represented by attorney Russell S. Wollman of Murchison & Cumming, LLP.

Plaintiffs alleged a HVAC unit installed on their condominium roof top caused excessive noise and vibration resulting in injuries and damages. They sued the management company that hired the company who installed the air conditioning unit directly on top of plaintiff’s roof. They also sued the homeowners association. They alleged negligence, negligence per se (violation of the Los Angeles Municipal Court Ordinance) and nuisance. They asked the jury for $3.8 million for loss of enjoyment of life, loss of enjoyment of home, mental stress, loss of sleep, nervousness, uncontrollable body vibrations, and hearing loss.

Positive Result in Intentional Tort Case

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The San Francisco County Superior Court granted summary judgment in an intentional tort case handled by Heidi C. Quan, Chantel E. Lafrades, and Katelyn M. Knight.

The case arose from an incident that took place in 2012 at the Food Express restaurant in San Francisco’s Chinatown district. The Plaintiff walked into the Food Express restaurant where she was confronted by an employee who accused Plaintiff of swindling the employee out of money in a “Chinese ghost scam.” The employee called upon individuals from surrounding businesses to detain the Plaintiff while the police were called. Plaintiff was arrested, however the charges were ultimately dropped.

Plaintiff filed suit against Food Express asserting causes of action for battery, false imprisonment, and false arrest based on a respondeat superior theory of liability, as well as a cause of action for negligent hiring, training and supervision. Plaintiff argued that Food Express bore liability for the conduct of its employee because the incident took place at work during working hours, and that Food Express ratified the conduct of its employee in failing to take any disciplinary action against her.

The Murchison attorneys moved for summary judgment, or in the alternative summary adjudication, arguing that the conduct fell outside of the scope of employment in that the conduct arose from a personal matter and was not reasonably related to the employee’s duties as a dishwasher, that there was no evidence of any affirmative ratifying action, and Food Express had no notice of the employee’s alleged unfitness supporting a negligent hiring and retention claim.

Favorable Result in Gross Negligence Case

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A Los Angeles court granted a summary judgement in favor of Motorcycle Safety Foundation, represented by Murchison & Cumming attorney Nancy N. Potter. The plaintiff took a beginners’ motorcycle riding course from Motorcycle Safety Foundation, on the campus of Cerritos College; as part of the enrollment, he signed a waiver and release of liability. During the class, another student was unable to control his motorcycle and hit the plaintiff’s knee and the plaintiff sued, alleging simple and gross negligence. The defense filed a motion for summary judgment based on the waiver and release which the plaintiff signed, noting the position that he had not been given time to read the document before signing it. The court held that the plaintiff was bound by the release which he had signed, that there had been no facts showing fraud, and that the waiver was not against public policy because motorcycle training is not an essential activity and the plaintiff had many sources for the training. The court also held that there was no possibility of gross negligence, based on the facts alleged, and therefore granted summary judgment.

Defense Verdict in Premises Liability Case

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A jury recently returned a verdict in favor of defendant El Proyecto Del Barrio Foundation, Inc. represented by Murchison & Cumming Senior Partner Richard C. Moreno and Partner Lisa D. Angelo, in a personal injury matter where a senior citizen sought millions of dollars in damages. Robert Finnerty and Christopher Aumais of Girardi Keese tried the case on behalf of both plaintiffs.

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.

At trial, the plaintiff testified that after she got out of her son’s SUV, she intended to walk up the designated walk way toward the entrance of the Clinic but a family was walking down the walkway. As such, she walked across two empty parking stalls and toward a second designated pathway when she tripped over the wheel-stop. The plaintiff’s liability expert testified that all concrete wheel stops are “tripping hazards” and should not be used any time there is a possibility a pedestrian can come into contact with the wheel stop and that the wheel stops were “dangerous” because they were not painted blue or another contrasting color. According to the defense expert, both the wheel stops and disabled parking stalls complied with the California Building Code; and, according to the Code, the clinic had no choice but to have concrete wheel stops based upon the design of the parking lot. He also testified that the California Building Code does not require the wheel stops be painted blue. The clinic’s architect further testified about the parking lot’s design, which he drafted, based upon the California Building Code and permits obtained from both the County and City of Los Angeles.

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.

In this trip and fall case, 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.

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Murchison & Cumming, LLP Wins Big in Assumption of Risk Case

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In a decision published this last week, the Fourth District Court of Appeal in San Diego held that a patron chased by a chainsaw-wielding actor at a Halloween haunted attraction assumed the risk he may become frightened, run and fall as a result of that fear when he chose to engage in the activity, and therefore had no claim against the facility. The decision in Scott Griffin v. The Haunted Hotel, Inc. (2015 DJDAR 12569), applied recent Supreme Court authority that extended the doctrine of primary assumption of risk, previously applied almost exclusively to sports and athletic recreational activities, to amusement attractions. The decision affirmed a summary judgment won in San Diego County Superior Court by attorneys from the San Diego office of Murchison & Cumming, LLP, who went on to win the appeal. Jefferson S. Smith was lead counsel, and Scott J. Loeding and David M. Hall handled the motion and appeal.

” ‘Patrons in a Halloween haunted house are expected to be surprised, startled and scared by the exhibits but the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways’ [citations omitted],” wrote Justice Gilbert Nares in the unanimous opinion. The appellate court affirmed the ruling of the Hon. Katherine A. Bacal, Judge of the Superior Court (Case No. 37-2013-00044186-CU-PO-CTL).

Justice Nares concluded: “[T]he very purpose of the Haunted Trail is to frighten patrons. Haunted Hotel informed patrons the event had ‘high impact scares.’ Patrons in a Halloween haunted house are expected to be surprised, startled, and scared by the exhibits. That is what Griffin paid money to experience. At bottom, his complaint here is Haunted Hotel delivered on its promise to scare the wits out of him.”