Case studies and results details
Edward Denzin and Barbara Denzin v. Steelcase, Inc., and DOES 1 to 25
Court Case No.: KC 062625
LASC Grants Summary Judgment in Common Carrier / Transportation Case
November 12, 2013
Leonid Shor v. Little New York Restaurant
Court Case No.: BC 377016
Court of Appeal, Second Appellate District, Division Five, Affirms Orders of Superior Court of Los Angeles granting Insurance company’s motion to intervene and motion to set aside default judgment Ordered December 13, 2011
LASC Grants Motion for Summary Judgment in negligent supervision / civil rights case against local Charter school in a case handled by Michael B. Lawler, Lisa D. Angelo and Abraham Berger.
On April 22, 2010, a student was attacked by another student during school hours and in-between class periods. In a lawsuit filed by the injured student against the school nearly a year later, Plaintiff alleged numerous causes of action including assault and battery as to the student attacker, intentional infliction of emotional distress as to the Director of the school, negligent supervision and premises liability as to the school and Violtation of California’s Unruh Act and sexul harassment in violation of California’s Education Code 200 as to all defendants. After two years of litigation and numerous motions, Judge Teresa Beaudet of Department 92 granted defendant’s motion for summary judgment on the two remaining counts – negligent supervision and Violation of Education Code 200 – sexual harassment. The court held that defendant met its initial burden on summary judgment as it provided competent evidence the the attack was not foreseeable and an expert declaration containing several opinions that showed the school complied with all its policies and procedures, had a sufficient student to teacher / staff ratio on campus the day the incident occurred and met or exceeded the requisite standard of care for schools of simiar size and configuration on the day the incident occurred. The court further found that Plaintiff’s opposition to Defendant’s motion did not show that a triable issue of material fact existed as to any of the remaining claims as the only disputed facts noted were not “material” and because the court sustained Defendant’s objection to Plaintiff’s expert declaration as it was not supported by a CV and it did not contain any information about his qualifications.
On August 29, 2013 Judge Thomas O’Brien of Department 92 in the Los Angeles Superior Court-Central Branch, sustained the Defendant’s demurrer to Plaintiff’s Complaint without leave to amend in a personal injury matter handled by Guy R. Gruppie, Lisa D. Angelo and Nanette Reed.
According to Plaintiff’s complaint, on December 7, 2010 she sustained personal injuries while riding an electric escalator at the Metro Station owned and operated by Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY (“LACMTA”). On December 27, 2010, Plaintiff filed a “claim for damages” with the LACMTA pursuant to California law and Government Code § 945.4. On January 18, 2011, a proper Notice of Rejection on Plaintiff’s “claim for damages” was sent to Plaintiff via U.S. Mail. According to Government Code § 945.6, Plaintiff had six (6) months from the date the claim is acted upon or deemed to have been rejected to file suit against a Government entity. On July 25, 2012, a year and a half after the Notice of Rejection was mailed, Plaintiff filed a complaint for damages against LACMTA. Accordingly, Defendant filed a demurrer to Plaintiff’s complaint on grounds it was time-barred under the Government Code. One week before the hearing on LACMTA’s demurrer, Plaintiff’s counsel filed a Petition for Relief under Government Code §946.6 and/or Code of Civil Procedure §473. In the Petition, Plaintiff sought to be relieved from her former counsel’s error in failing to file her lawsuit within the statutory timeframe under the Government Code. Since Plaintiff’s petition failed to comply with the Code of Civil Procedure as to standard notice and service requirements, the court continued the hearing date on LACMTA’s demurrer for 180 days so as to provide Plaintiff with sufficient time to properly file her Petition for Relief since the ruling on her Petition would have a direct effect on the outcome of LACMTA’s demurrer.
After two rounds of briefing, Judge Teresa Beaudet of Department 92 denied the Petition in its entirety on July 18, 2013 holding that Government Code section 946.6 did not apply to the circumstances of the case and that the section does not mention relief from the “filing suit” requirements of section 945.6. As to Plaintiff’s alternative Petition for Relief under Code of Civil Procedure §473, the court found that pursuant to Castro v. Sacramento County Fire Protection District, 47 Cal. App. 4th 924, 929-930 (1996), such relief is not available because Government Code section 945.6 is the operative statute of limitation and §473 cannot serve as a loophole to circumvent the necessary outcome under the Government Code.
In light of Judge Beaudet’s ruling on Plaintiff’s Petition for Relief, Judge O’Brien sustained LACMTA’s demurrer to Plaintiff’s complaint without leave to amend.
On May 28, 2013, in Department 6 of the Riverside Superior Court, Judge Robert Taylor granted the defendants’ Joint Motion for Summary Judgment in an intentional infliction of emotional distress case handled by Robert H. Panman and Lisa D. Angelo.
In June 2011, George Ross, Jr. enrolled in a summer law school admissions examination preparatory course offered by The Princeton Review. In a verified complaint, the plaintiff (who was in pro per) alleged that the prep program, its director and one of its instructors collectively and intentionally caused him to suffer from emotional distress when they questioned him about matters pertaining to attendance and participation, including disruptions created by using his phone during class and getting out of his seat to use the restroom. The plaintiff was ultimately dismissed from the course several weeks before its completion. The plaintiff sought one million dollars and punitive damages for loss of future earnings since he claimed this affected his performance on the October 2011 LSAT examination, and his ability to gain acceptance to law school and become a lawyer. Murchison & Cumming defended The Princeton Review, a director of the program and a course instructor in this action.
In October 2012, the defendants filed a Joint Motion for Summary Judgment as to the plaintiff’s complaint. At the hearing on the defendants’ Motion for Summary Judgment, the court found that undisputed material facts showed: (1) the plaintiff attended the defendants’ LSAT course in June 2011 and was dismissed less than two months later in August 2011; (2) the defendant had a policy which included the right to dismiss disruptive students; (3) the plaintiff testified at his deposition that he knew about the defendants’ dismissal policy; and (4) that the plaintiff was dismissed from the defendants’ LSAT preparatory because he was disruptive.
As to the individually named defendants, the court held that their alleged conduct did not rise to the level of “extreme and outrageous conduct” and, based upon complaints from other students, which the court also found uncontroverted, statements made by the individual defendants to the plaintiff such as, “Why do you even bother showing up to class?” and actions, including dismissal from class, seemed fit. As to the plaintiff’s repeated contention that he was wrongfully targeted for simply getting up to use the restroom, the court found the plaintiff “mischaracterized” not only his verified complaint allegations but ignored the admissible evidence from the defendants. The court explained, “defendants did not dismiss [plaintiff] from class for going to the bathroom on one occasion, they dismissed [plaintiff] for being disruptive, irate, talking on the phone, arguing with the proctors.” Citing Cochran et al. v. Cochran, Jr., 65 Cal. App. 4th 488 (1998), the court then stated, “even if the [bathroom] allegations were true, that conduct does not rise to the level of extreme and outrageous conduct under California law.” Lastly, the court overruled all of the plaintiff’s objections to evidence, sustained all of the defendants’ objections to the plaintiff’s evidence and held that, in addition to their evidentiary defects, the plaintiff’s declarations in support of his opposition to the Motion for Summary Judgment failed to address any actual legal issues including the key issue of disruption.
Mark M. Gnesin successfully argued for the removal of a workers’ compensation case against Murchison & Cumming’s client, a magazine clearing house, from the Superior Court to the Workers Compensation Appeals Board in a Riverside County Superior Court jury trial.
The case arose from an automobile accident involving the two plaintiffs. The plaintiffs, who sold magazine subscriptions door to door, were passengers in a van, driving from Southern California to Salt Lake City, Utah to sell magazine subscriptions door to door, when the tread on the tire of their van unraveled because the tire was improperly maintained. This caused the van to leave the roadway and roll over several times, causing severe personal injuries to the plaintiffs who were not wearing their seat belts. The value of the plaintiffs’ damage claim was $15 million.
The plaintiffs claimed they were employees of the magazine clearing house. The clearing house disputed this, claiming that the plaintiffs were independent contractors to a company which contracted with the clearing house to sell the magazine subscriptions door to door.
The plaintiffs claimed that because the clearing house disputed that they were employees, it was clear that the company did not have workers’ compensation insurance for them and that they could therefore sue the clearing house directly, as their employer.
Mr. Gnesin pled an alternative defense which stated that the clearing house was not the plaintiffs’ employer, but that if the jury determined that the plaintiffs were employees, the company had workers’ compensation insurance to cover this loss and that the case could only proceed as a workers’ compensation claim and not in Superior Court.
The court held a bench trial before the jury was selected and the defense convinced the court that, if the jury determined that the plaintiffs were employees, the company’s workers’ compensation insurance policy would provide coverage, and that exclusive jurisdiction of the claim would be in the Workers Compensation Appeals Board. The case was then tried to the jury on the bifurcated issue of whether the plaintiffs were employees or independent contractors of the clearing house. The jury found that the plaintiffs were employees of the clearing house and the case ended with that determination without any trial on the issue of damages or any judgment against the client or the carrier.
On April 4, 2013, the Los Angeles Superior Court granted a Joint Motion for Summary Judgment to Murchison & Cumming’s client in a multi-million dollar toxic tort case handled by Dan L. Longo and Lisa D. Angelo.
In December 2007, a pipe burst in the plaintiff’s apartment in Beverly Hills, California. Soon after, the plaintiff’s house flooded. The plaintiff’s landlord hired a series of contractors to clean and restore the plaintiff’s apartment back to its same or similar condition prior to the flood. The following month, by the plaintiff’s request, the landlord hired an environmental consultant to sample the apartment for mold. By January 18, 2008, the plaintiff’s pre-existing sinus and respiratory problems worsened and he was ultimately rushed to the hospital where he was informed for the first time that his medical conditions may be related to mold exposure. Two days later, the environmental consultants the landlord hired to assess the apartment prepared and tendered a “Mold and Bacteria Assessment Report” where they found only mold inside the apartment. Dissatisfied that the environmental consultant’s report only found mold and not bacteria in the apartment, the plaintiff hired his own environmental consulting firm who also found only mold in the apartment. The plaintiff insisted that the first environmental consulting company hired by his landlord return to his apartment in February, 2008 to conduct a second inspection for both mold and fecal bacteria. On February 18, 2008, the environmental consultants returned to the apartment and collected new samples which were sent to an outside laboratory for testing. In a second “Mold and Bacteria Assessment Report” issued February 20, 2008, the first environmental consulting company again found only traces of mold in the plaintiff’s apartment, not fecal bacteria, which the plaintiff continued to believe was in his apartment. Meanwhile, the plaintiff’s respiratory symptoms worsened and on April 22, 2008, he was again rushed to the hospital. On this occasion, however, the plaintiff was informed he had suffered a vertebral artery dissection stroke during his first hospital visit in January 2008 and that his stroke was most likely caused by mold and bacteria exposure.
Two years later, on April 22, 2010, the plaintiff filed a lawsuit in Los Angeles Superior Court against his former landlord, the restoration company she hired to remediate the apartment in January 2008, the environmental consultants that found mold in the apartment in January and February 2008, a general contractor that performed construction work in and about the apartment between 2007-2008 and a former plumbing company that worked on pipes in the apartment in 2006, well before the 2007 pipe burst and flood.
In the court’s three-page written ruling granting the restoration and environmental consultant’s joint motion for summary judgment, the court explained that as of January 18, 2008, the plaintiff was on inquiry notice for purposes of the two-year statute of limitations and even if it was fecal bacteria and not mold that contributed to the plaintiff’s injury or the severity of the injury, the difference is immaterial for purposes of triggering the statute of limitations. The court held, “Plaintiff need not know of specific facts establishing causation to trigger the statute of limitations such as definitive diagnosis. ‘[T]he statute of limitations begins to run when the claimant ‘suspects or should suspect’ that his or her injury was’ caused by [someone’s] wrongdoing …. ‘ [citing Jolly v. Eli Lilly & Co.(1988) 44 Cal. 3d 1103,1110, fn. omitted.]” Rivas v. Safety-Kleen Corp. (2002) 98 Cal. App. 4th 218,228.” The court further held, “[e]ven assuming, for argument’s sake, the January, 2008 events somehow would not be sufficient, the February, 2008 events, which included Andersen’s return visit and Plaintiff’s own inspection results later that month, also fall outside of the period and are dates which are equally fatal to plaintiff’s limitations argument. Plaintiff’s argument that the stroke was a latent disease, and, therefore, that the claim did not accrue until Plaintiff discovered it– is unavailing. Plaintiff did not allege that his only injury was the stroke. Plaintiff’s verified FAC alleges he suffered ‘severe allergic reactions, respiratory and sinus problems, vomiting, dizziness and ultimately a stroke.’”
The Fourth District Court of Appeal affirmed in full the Orange County Superior Court’s granting of Essentia Insurance Company’s Motion for Summary Judgment. Carolyn A. Mathews handled the Motion for Summary Judgment and the opposition to the appeal, and Maria A. Starn handled the oral argument.
Essentia Insurance Company (OneBeacon) issued a classic boat insurance policy on Ashoff’s 1958 classic Chris Craft Continental 18-foot wood boat, the “Amore,” effective July 17, 2010 to July 17, 2011 that insured Ashoff against “accidental direct physical loss or damage except as specifically excluded.” The policy excluded from coverage loss or damage caused by or resulting from neglect, wear and tear, defect, deterioration, weathering and inherent vice.
On November 17, 2010, Ashoff reported to Essentia’s agent, Hagerty Class Marine Insurance Agency, that the Amore sank where it was berthed. Ashoff said he had last used the boat on November 14, 2010, there were no recent repairs or issues with the boat and he did not hit any submerged object.
Hagerty hired Charles Reininga, a marine surveyor, who inspected and surveyed the boat five days after it sank. He found the hull in good condition except for “a visible gap between the hull plans and the transom on the port side of the keel.” On December 2, 2010, Reininga performed a float test on the boat and found “a visible water leak into the vessel at the lower portion of the interior transom … and observed that water was pooling at the stern at a fast rate. Reininga concluded that the vessel sank due to wear, tear and fatigue of the hull planking and seal joints in the transom area, and Hagerty denied coverage on that basis.
Ashoff filed suit against Essentia for breach of contract and bad faith. Ashoff testified he took the Amore out on Sunday, two days before it sank. According to Ashoff, he and his girlfriend just putted around the harbor. He said he did not impact anything and nothing impacted him.
Ashoff’s February 14, 2012 opposition to Essentia’s Motion for Summary Judgment was accompanied by Ashoff’s declaration in which he stated, for the first time, that, when he took the Amore out on Sunday, November 14, he and his girlfriend went out of the harbor and cruised beyond the Newport breakwater. A large ship went by the Amore causing a large wake that hit the Amore straight on and hard. The Amore’s bow went up into the air and the Amore slapped so hard against the ocean water that the windshield fasteners broke and the windshield came lose. The engine died a few minutes later, requiring a jump from the harbor sheriff.
Ashoff engaged a marine surveyor, who performed a float test 14 months after the boat sank and was removed from the water, and, in reliance on Ashoff’s representations about hitting the large wake of the ship, he opined that the Amore did not sink due to wear, tear and fatigue of the hull.
On Essentia’s behalf, we argued that the doctrine of uberrimae fidei and California Insurance Code Section 1900 required Ashoff to communicate all material information in his possession regarding the risk and the whole truth in relation to all matters relating to the claim.
The Court of Appeal found that Ashoff’s whole story changed when he opposed Essentia’s Motion for Summary Judgment, and, since the new evidence directly contradicted Ashoff’s earlier sworn deposition testimony, the trial court was free to disregard it. The court stated that “admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.”
A Bakersfield jury returned a defense verdict in a premises liability case handled by Joseph Kang for defendant Tehachapi Towne Center, LLC.
In Betty Ramirez v. Tehachapi Towne Center, LLC, the plaintiff alleged personal injury, general negligence and premises liability after tripping and falling on the flared side of the handicap ramp near the entrance of a store located in the shopping center. Ms. Ramirez alleged that the shopping center carelessly and negligently owned, controlled, inspected and maintained a storefront to allow an apparent and obvious dangerous condition to exist. She claimed that the storefront impeded and obstructed simple walking in the area adjacent to the handicapped parking space.
The defendant contended that the storefront condition was open and obvious, that the plaintiff was inattentive, and there was no notice any dangerous conditions.
Medical specials totaled over $59,500 including a rotator cuff surgery, left hand surgery, a fractured jaw, replacement of teeth, facial contusions and physical therapy.
The jury returned an 11-1 verdict in favor of the defense.
The Los Angeles Superior Court returned a defense verdict in a personal injury case handled by Benjamin H. Seal, II. Plaintiff Mose Hart, III sued defendant Kevin Kissinger and his employer, alleging that Mr. Kissinger was negligent in the operation of his vehicle, an 18-wheeler truck.
On July 7, 2009, Mr. Hart was driving on Artesia Boulevard in Compton when an accident occurred where the front left corner of Mr. Hart’s vehicle hit the right-side cab of Mr. Kissinger’s truck. Mr. Hart argued that he was traveling in the curb lane of a two-lane, one-way side street when Mr. Kissinger attempted a sudden, wide right turn into a commercial driveway. Mr. Hart claimed that Mr. Kissinger made an illegal and dangerous maneuver from the left lane, causing the accident. Mr. Kissinger argued that he was traveling in the curb lane of the street, and that Mr. Hart had been traveling in the left, fast lane. As Mr. Kissinger slowed down to five to 10 miles per hour and turned on his right-turn signal, he swung into the left lane to attempt a wide turn. Mr. Hart then moved from the left lane into the right lane in an attempt to pass around the turning truck, causing the collision.
Mr. Hart was diagnosed with strains and sprains to his neck and lower back and underwent chiropractic treatment for over two months. He claimed $12,000 in past medical costs, and sought $20,000 to $350,000 in future medical expenses. The original demand was set at over $152,000, and was later reduced to $50,000. The offer was set at $6,875. After a five-day jury trial and 30-minute deliberation, the jury returned a unanimous defense verdict on liability.