Tag Archive for: friedrich-seitz

Murchison & Cumming Partner Friedrich Seitz Appointed Lead Counsel for Bluebonnet in Bastrop Fire Litigation

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LOS ANGELES – Bluebonnet Electric Cooperative has appointed Murchison & Cumming’s Wildland Fire Litigation Practice Group Chair Friedrich W. Seitz as lead defense counsel in the Bastrop County Complex Fire litigation in Texas.

Mr. Seitz and the Wildland Fire team will represent the Cooperative in defending against the numerous lawsuits that have been filed relating to the September 2011 fire. The Bastrop County Complex Fire started on September 4, 2011 and eventually spread to five countries, aided by severe drought conditions and high winds. It is alleged that trees fell into the electric transmission lines owned by Bluebonnet, burning 34,068 acres and destroying 1,670 homes and commercial buildings with losses estimated at $250 million.

Murchison & Cumming regularly represents utilities in litigation and has defended Southern California Edison and Breitburn Energy Partners against litigation arising out of wildland fires for many years. A Martindale-Hubbell AV-rated attorney, Mr. Seitz is a Senior Partner and served as the firm’s Managing Partner for almost 20 years. He has extensive jury trial experience holding the rank of “Advocate” with the American Board of Trial Advocates (ABOTA), having tried more than 75 jury trials. He has held various leadership roles, including Product Liability Section Chair, within the Federation of Defense and Corporate Counsel. Mr. Seitz is the current Product Liability Chair for the USLAW Network and is a member of the Defense Research Institute (DRI) and the Product Liability Advisory Council (PLAC).

About Murchison & Cumming, LLP
With a firm history dating to 1930, Murchison & Cumming, LLP is a premier, AV-rated civil litigation firm with five offices in California and Las Vegas, whose attorneys specialize in the defense of domestic and international businesses, insurers and individuals, at trial and on appeal. The firm’s attorneys also handle employment matters and business transactions. The firm is a member of the USLAW Network. For additional information, please visit our website at www.murchisonlaw.com.

Navigating Discovery Abroad: Obtaining Witnesses and Materials Located Outside of the US

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By: Friedrich W. Seitz

Daily Journal

Today, there is an ever-present need to obtain discovery from people or organizations who are involved in disputes within the United States, but located in foreign jurisdictions. Lawsuits frequently arise where the need to obtain evidence from sources located abroad is critical to a case. When discovery is being sought from a person or organization who is a party to the action and located abroad, and thus subject to the court’s jurisdiction, the process is comparable to obtaining discovery from a party located within the United States. State and federal discovery rules apply and will govern requests, production of documents, and the taking of depositions. Generally, Federal Rule of Civil Procedure 26 details general discovery rules to be followed, Federal Rule of Civil Procedure 30 describes the procedure for taking depositions, and Federal Rule of Civil Procedure 34 governs production.

State and federal rules allow a court to order persons located outside of the United States to produce documents and attend depositions in the United States so long as that person is subject to the personal jurisdiction of the court. Additionally, a party can obtain discovery from certain nonparties located abroad. Federal Rule of Civil Procedure 45 allows a party to subpoena documents from a nonparty witness and potentially subpoena a witness for deposition if that nonparty is located within the territorial jurisdiction of the court or has a place of business in the United States.

Alternatively, when seeking to obtain evidence from a person or organization located abroad that is not subject to the court’s jurisdiction, the process begins with a determination as to whether the other country has consented to be bound by the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters. The Convention was created to help parties obtain evidence in both civil and common law legal systems, and most signatories to the Convention allow some form of discovery when dealing with cross-border disputes. A country must be a party to the Convention in order to be bound by the Convention, as opposed to just a member of the Hague Conference.

If the discovery originates in a country that is not a party to the Convention, “letters rogatory” will typically be used to obtain evidence instead of the Convention. These letters are one of the oldest discovery procedures used to conduct discovery abroad. It involves applying to the U.S. court where the action is pending and requesting that that court send a formal request for assistance directly to the foreign court. They can also be requested through diplomatic channels. Once the foreign court or authority receives the request, it issues the letters rogatory under seal and conducts the discovery pursuant to the specific request of the petitioning party. The foreign court, however, is under no legal obligation to issue this and, thus, should only be used where discovery under the Convention cannot be obtained.

When the evidence sought is located in a country that is a party to the Convention, a legal obligation does exist. These countries are considered contracting states. The Convention provides a mechanism to obtain evidence located in these states in both civil or commercial matters. Proceeding under the Convention is the most frequently used procedure, as it is less time consuming, less costly, and requires less involvement of government and court officials.

Most contracting states consider the Convention to be the exclusive mechanism to obtain evidence in other member states. The United States, however, is one of the minority countries that views the Convention as a permissive, alternative means to obtain evidence, rather than as an exclusive, mandatory procedure. In [Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa], 482 U.S. 522 (1987) the U.S. Supreme Court found that the parties have the option of using the Convention to obtain discovery that is located abroad, but that foreign discovery can also be taken using typical U.S. discovery procedures and the Federal Rules of Civil Procedure.

When evidence is to be obtained under the Convention, it involves the submission of a formal “letter of request,” which can then be sent to a judicial authority or, more informally, sent to diplomatic officers, consular agents, and commissions who then gather evidence. Each process is discussed in chapter one and chapter two of the Convention, respectively.

A letter of request may be submitted in the state or federal court where the action is pending. This domestic court then directs the letter to the designated central authority in the foreign contracting state where the documents or witnesses are located. If the letter is approved, the central authority will send it to the appropriate judicial authority, who will then assist in obtaining answers to interrogatories, production of documents, and other discovery requests. The letter can also be directed to a diplomatic officer, consular agent, or commissioner, but only if there have been no objections filed to chapter two of the Convention. This more informal process of obtaining evidence through diplomatic officers, consular agents, or commissioners is subject to the published reservations and declaration of the contracting state.

The letter of request should be written in the language of the contracting state to whom the request is being made, but that state should also accept it in English or French. However, the receiving state may still object and request that another language be used. The letter must clearly and concisely identify various items in accordance with chapter one, including: the nature of the proceedings, the names and addresses of the person(s) to be examined, the questions to be put to that person, the documents or other material to be inspected, the form of oath to be used, how the testimony is to be recorded, and a specific request to ask questions of the person(s) if so desired.

Be aware tthat when drafting letters of request, certain countries can request the right not to execute the letter for the purpose of obtaining pretrial discovery. In general, a letter will be executed as requested, but Article 23 of the Convention allows contracting states to declare that they will not execute it ” for the purpose of obtaining pretrial discovery of documents as known in the Common Law countries.” Almost every signatory to the Convention, with the exception of Barbados, Israel, the United States, the Czech Republic, and the Slovak Republic, has indicated that it will not execute these letters for acquiring pretrial discovery. One way to avoid this potential issue is to draft the letter without using the term pretrial discovery, and to emphasize the fact that the evidence will be used for trial purposes instead.

Once a letter of request has been approved and executed, the authority to whom the request was made is expected to apply the same “measures of compulsion” as it would if the same request was made by a domestic party or authority in internal proceedings. Discovery will be sought to the extent that internal law allows and thus the foreign party requesting the evidence is treated the same as a domestic party.

While the Convention is not considered a mandatory means of obtaining foreign discovery in the United States, it is clear that it is a useful and efficient means to do so. It is important to be aware of the scope of the Convention, as well as the different reservations and designations of each contracting state so as to be better prepared when seeking evidence from a particular contracting state. The Hague Conference is a useful resource and provides relevant and insightful information, such as the list of contracting states, full text of the Convention, and various handbooks and examples of documents, such as letters of request. The Convention was designed as a means to facilitate cross-border discovery and should be utilized to the extent possible when seeking discovery abroad.

Five M&C Partners Recognized as 2011 Super Lawyers

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LOS ANGELES – Murchison & Cumming, LLP is pleased to announce that five of its attorneys have earned the distinction of having been chosen by their peers as 2011 Southern California Super Lawyers®. The annual listing, based on peer evaluations, was recently released by Law & Politics and published in Los Angeles Magazine and The New York Times.

All five attorneys are veteran “Super Lawyers.” The Murchison & Cumming partners selected for the 2011 list are:

  • Jean M. Lawler, Managing Partner of the firm and Co-Chair of the Insurance Law practice group. This marks Ms. Lawler’s sixth consecutive year on the list. An expert on insurance law, Ms. Lawler is a Past President of the Federation of Defense & Corporate Counsel (FDCC), an international legal organization. She has also served as a Director of DRI, Lawyers for Civil Justice and the Association of Southern California Defense Counsel.
  • Friedrich W. Seitz, the firm’s former Managing Partner, Chair of the International Law practice group, and Co-Chair of the Business Litigation and Product Liability/Utilities practice groups. This is his eighth consecutive Super Lawyer mention. A premier trial lawyer and member of the Los Angeles Chapter of the American Board of Trial Advocates, Diplomat rank, Mr. Seitz is also a member of the FDCC and former Chair of its Product Liability Substantive Law Section.
  • Michael B. Lawler, Co-Chair of the firm’s Employment Law practice group. A Past President of the Association of Southern California Defense Counsel, this marks the seventh consecutive year that he has been named to the list. Mr. Lawler, a seasoned trial lawyer, has been recognized as one of the “Best Lawyers in America” and a “Leading Employment Lawyer in California.” He has served on the national board of the American Board of Trial Advocates, is a member of its Los Angeles Chapter and a member of the FDCC.
  • Guy R. Gruppie, Co-Chair of the firm’s Emerging Risks & Specialty Tort Litigation practice group and immediate Past-Chair of the firm’s General Liability & Casualty practice group. This is Mr. Gruppie’s third year as a Southern California Super Lawyer. He is a member of the Los Angeles Chapter of the American Board of Trial Advocates and the FDCC, having served as Co-Chair of the FDCC Trial Tactics Substantive Law Section from 2004-2008.
  • James P. Collins, Jr., six-time Super Lawyer and respected Orange County trial lawyer. Mr. Collins is a Past President of the Association of Southern California Defense Counsel and was a Founding Partner of the former firm of Cotkin & Collins. He is a member of the American Board of Trial Advocates and the FDCC.

About Murchison & Cumming, LLP

With a firm history dating to 1930, Murchison & Cumming, LLP is a premier civil litigation firm with five offices in California and Las Vegas, whose attorneys specialize in the defense of domestic and international businesses, insurers and individuals, at trial and on appeal. The firm’s attorneys also handle employment matters and business transactions. The firm is a member of the USLAW Network. For additional information, please visit our website at www.murchisonlaw.com.

Three M&C Attorneys Listed in Super Lawyers Corporate Counsel Edition

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LOS ANGELES – Friedrich W. Seitz, Guy R. Gruppie and Heather L. Mills have been listed in the September/October 2010 Super Lawyers Corporate Counsel Edition as California Super Lawyers® for Civil Litigation and General and Products Personal Injury Defense, respectively.

Mr. Seitz chairs the firm’s Product Liability, Business Litigation and International Law practice groups and served as managing partner of the firm from 1986 to 2007. He is a frequent speaker and has authored articles on civil litigation topics internationally. Mr. Seitz is a member of, and has served as section chair for, numerous noted organizations such as the Association of Southern California Defense Counsel, the International Association of Defense Counsel and the Defense Research Institute.

Mr. Gruppie chairs the firm’s Emerging Risks and Specialty Tort Litigation practice group. He has published articles and speaks on personal injury defense and litigation for the Federation of Defense & Corporate Counsel (FDCC) and the National Association of Elevator Contractors, to name a few. Mr. Gruppie is a former Co-Chair of the Trial Tactics Section of the FDCC, and serves as National Trial Counsel for Fuji Film, USA.

Ms. Mills is a member of the firm’s Product Liability and Professional Liability practice groups. She has achieved successful results, in both State and Federal courts, for a wide range of clients. Ms. Mills is a versatile attorney specializing in the defense of cases involving complex legal issues and significant damages.

About Murchison & Cumming, LLP

With a firm history dating to 1930, Murchison & Cumming, LLP is a premier civil litigation firm with five offices in California and Las Vegas, whose attorneys specialize in the defense of domestic and international businesses, insurers and individuals, at trial and on appeal. The firm’s attorneys also handle employment matters and business transactions. The firm is a member of the USLAW Network. For additional information, please visit our website at www.murchisonlaw.com.

Six Murchison & Cumming Partners Recognized as 2010 Super Lawyers

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Partner Heather Mills Makes First Appearance on Annual List

LOS ANGELES – February 17, 2010 – Murchison & Cumming, LLP is pleased to announce that six of its attorneys have earned the distinction of having been chosen by their peers as 2010 Southern California “Super Lawyers.” The annual listing, based on peer evaluations, was recently released by Law & Politics and published in Los Angeles Magazine and The New York Times.

Marking her first appearance on the annual Southern California Super Lawyer’s list, Heather L. Mills joins James P. Collins Jr. who recently joined the firm, and four other firm partners, all veteran Super Lawyers. The Murchison & Cumming Partners selected for the 2010 list are:

  • Jean M. Lawler, co-chair of the Insurance Law Practice Group and Managing Partner of the firm. This marks Ms. Lawler’s fifth consecutive year on the list. An expert on insurance law, Ms. Lawler is a Past President of the Federation of Defense & Corporate Counsel (FDCC), an international legal organization. She has also served as a Director of DRI, Lawyers for Civil Justice and Association of Southern California Defense Counsel.
  • Friedrich W. Seitz, the firm’s former Managing Partner and chair of the firm’s Product Liability Practice Group. This is his seventh consecutive Super Lawyer mention. A premier trial lawyer and member of the Los Angeles chapter of the American Board of Trial Advocates, Diplomat rank, Mr. Seitz is also a member of the FDCC and former chair of its Product Liability Substantive Law Section.
  • Michael B. Lawler, co-chair of the firm’s Health Law and Employment Law Practice Groups. A Past President of the Association of Southern California Defense Counsel, this marks the sixth consecutive year that he has been named to the list. Mr. Lawler, a seasoned trial lawyer, has been recognized as one of the Best Lawyers in America. He has served on the National Board of the American Board of Trial Advocates, is a member of its Los Angeles chapter and is a member of the FDCC.
  • Guy R. Gruppie, chair of the firm’s Complex Litigation Practice Group and immediate past chair of the firm’s General Liability Practice Group. This is Mr. Gruppie’s second year as a Southern California Super Lawyer. He is a member of the Los Angeles Chapter of the American Board of Trial Advocates and the FDCC, having served as co-chair of the FDCC Trial Tactics Substantive Law Section from 2004-2008.
  • James P. Collins Jr, respected Orange County trial lawyer. Mr. Collins is a Past President of the Association of Southern California Defense Counsel and was a founding partner of the former firm of Cotkin & Collins. He is a member of the American Board of Trial Advocates and the FDCC. A five-time Super Lawyer, Mr. Collins joined Murchison & Cumming in 2009.
  • Heather L. Mills, member of the firm’s Complex Litigation, Product Liability and Professional Liability Practice Groups. Ms. Mills is a versatile trial attorney who enjoys the challenges of defending cases involving complex legal issues and significant damages. She is a member of the Los Angeles County Bar Association, the Long Beach Bar Association, the Justice Carlos Moreno Chapter of the American Inns of Court, and the American Bar Association.

About Murchison & Cumming, LLP

With a firm history dating to 1930, Murchison & Cumming, LLP is a premier civil litigation firm with five offices in California and Las Vegas, whose attorneys specialize in the defense of domestic and international businesses, insurers and individuals, at trial and on appeal. The Firm’s attorneys also handle employment matters and business transactions. For additional information, please visit our website at www.murchisonlaw.com.

Murchison & Cumming Elevates Two Attorneys In the Partnership Ranks: Product Liability Trial Attorneys Richard Moreno and Paul Flaherty

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LOS ANGELES -January 4, 2010 – Murchison & Cumming, LLP is pleased to announce that, effective January 1, 2010, Richard C. Moreno, Chair of the Transportation Liability Practice Group, will become a Senior Partner of the firm and Paul R. Flaherty will become an Associate Partner.

“These attorneys embody the core values of our firm,” said Jean M. Lawler, Managing Partner. ” Each is committed to his clients and each is an excellent trial attorney.”

Mr. Moreno focuses his practice in the areas of transportation, product liability, general liability, warranty liability, and the defense of utility companies, in wildland fire litigation. An experienced trial attorney respected for his in-depth case preparation, Mr. Moreno serves as lead counsel, along with firm Senior Partner Friedrich W. Seitz, in defending wildland fire lawsuits. These discovery-intensive, complex cases benefit greatly from Mr. Moreno’s acumen in liability and damage evaluation and efficient case management.

The defense of automotive, chassis, and truck manufacturers and dealerships in “lemon law” and other warranty claims is also a significant aspect of Mr. Moreno’s practice. He has obtained several defense verdicts for Freightliner Custom Chassis Corporation, including one received in the company’s first case to go to verdict. Mr. Moreno specializes in the handling of catastrophic injury cases and has extensive trial experience in matters involving multiple wrongful deaths and quadriplegics.

A career-long attorney of Murchison & Cumming, Mr. Moreno earned his J.D. from Whittier College School of Law, where he was the recipient of the American Jurisprudence Award in Immigration Law and Criminal Law. Mr. Moreno was awarded his undergraduate degree from the University of Southern California.

Paul Flaherty has spent the past decade as an attorney with the firm. His practice emphasis is on defense of product liability, aviation and general tort lawsuits. Mr. Flaherty excels in cases involving complex mechanical and technical issues. The benefit of these skills was recently highlighted in a wrongful death trial involving a private plane crash which resulted in a defense verdict after a six-week trial. Mr. Flaherty is a graduate of Loyola Law School of Los Angeles and of California State University, Northridge.

 

About Murchison & Cumming, LLP

With a firm history dating to 1930, Murchison & Cumming, LLP is a premier civil litigation firm with five offices in California and Las Vegas, whose attorneys specialize in the defense of domestic and international businesses, insurers and individuals, at trial and on appeal. The Firm’s attorneys also handle employment matters and business transactions. For additional information, please visit our website at www.murchisonlaw.com.

California’s Application of Strict Products Liability to the Hybrid Enterprise

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By: Friedrich W. Seitz

IADC Committee Newsletter

In a recently published opinion of the California Court of Appeals, Ontiveros v. 24 Hour Fitness USA, Inc., 169 Cal.App.4th 424 (2008), the court reiterated and further clarified the application of strict products liability to “hybrid enterprises”; those enterprises that provide both products and services.

Extension of the Strict Product Liability Doctrine
As announced in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 (1963), it is the general rule that “[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” Id., at 62. Over the years, the progeny of cases following Greenman have extended the doctrine of strict products liability to almost anyone identifiable as “an integral part of the overall producing and marketing enterprise.” Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262 (1964). Traditionally, a defendant has been considered a sufficient participant in the overall producing and marketing enterprise when: “(1) The defendant received a direct financial benefit from its activities and from the sale of the product;(2) The defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and (2) The defendant had control over, or a substantial ability to influence the manufacturing or distribution process.” Bay Summit Community Association v. Shell Oil Co., 451 Cal.App.4th 762, 775 (1996).

With these principals in mind, California courts have applied the doctrine of strict products liability to others involved in the vertical distribution of consumer goods, including, lessors of personal property, wholesale and retail distributors, and licensors. Price v. Shell Oil Co., 2 Cal.3d 245, 252 (1970). Although not directly involved in the manufacture or design of the final product, these defendants have been deemed instrumental in distributing the product to the consuming public. Id.

The extension of products liability is not, however, without limit and various well-recognized exemptions have been created. For example, defendants engaged in supplying a service, as opposed to a product, are not considered within the chain of distribution and, thus, not subject to strict products liability. Pierson v. Sharp Memorial Hospital, Inc., 216 Cal.App.3d 340, 344 (1989) (a hospital, as a provider of professional medical services, is not strictly liable for defective carpet in a hospital room). While it is generally recognized that the doctrine is inapplicable to service providers, uncertainties arise where the defendant is a “hybrid enterprise”; an enterprise that furnishes both products and services. In such a scenario, liability will generally depend upon the dominant purpose of the enterprise.

Application of Strict Products Liability to Mixed Purpose Transactions
A. The Dominant Purpose Approach
Presented with the question of whether to hold a pharmacist strictly liable for the sale of a prescription drug, the California Supreme Court was made to decide whether the role of the pharmacist is more akin to a retailer or a service provider. Murphy v. E.R. Squib & Sons, 40 Cal.3d 672 (1985). In analyzing this issue, the court expressed approval of the distinction drawn in Magrine v. Kransnica, 94 N.J. Super. 228 (1967) wherein the court stated:

“The essence of the transaction between the retail seller and the consumer relates to the article sold. The seller is in the business of supplying the product to the consumer. It is that, and that alone, for which he is paid. A dentist or physician offers, and is paid for, his professional services and skill. That is the essence of the relationship between him and his patient.”

Recognizing that a pharmacist is clearly engaged in a “hybrid enterprise,” combining the sale of prescription drugs with the performance of a service, the California Supreme Court found that a critical distinction between a pharmacist and an ordinary retailer is that only a licensed pharmacist may dispense prescription drugs. Moreover, as defined by the California Legislature at Business & Professions Code § 4046, “the practice of pharmacy is not only a profession (subd. (a)), but also a ‘dynamic patient-oriented health service that applices a scientific body of knowledge to improve and promote patienthealth by means of appropriate drug use and drug related therapy.’” Id., at 679 (emphasis added).

Finally, a pharmacist “cannot offer a prescription for sale except by order of the doctor.” Id. In essence, the pharmacist “is providing a service to the doctor and acting as an extension of the doctor in the same sense as a technician who takes an x-ray or analyzes a blood sample on a doctor’s order.” Id. Hence, in Murphy, the transaction between the phaarmacist and the plaintiff was deemed to be a service, effectively immunizing the pharmacist from strict liability for defects in the drug.

Subsequently, the Third District Court of Appeal was asked to apply this rationale in a less obvious context, the non-professional transaction. Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248 (1995). In Ferrari, plaintiff was injured on a raft while participating in a five-day rafting trip sponsored by defendant. Plaintiff sought to impose strict products liability on the rafting company claiming that defendant was a “lessor” of the raft. In support, plaintiff relied upon Garcia v. Halsett, 3 Cal.App.3d 319 (1970) wherein a laundromat owner was found strictly liable for injuries caused by a defective washing machine. There, although the defendant was not involved in the distribution of the product, the court found it significant that similar to a manufacturer, retailer or lessor, the owner did make the product available for use by the consuming public. Consequently, the court reasoned that defendant played “more than a random and accidental role in the overall marketing enterprise of the product in question.” Id., at 326. For this reason, strict products liability was deemed appropriate.

In distinguishing Garcia, the Ferrari court noted that unlike the defendant in Garcia, defendant rafting company provided more than a raft; they provided a service, i.e., recreational raft transportation on the Colorado river. Ferrari, supra, 32 Cal.App.4th at 259. Guided by the dominant purpose approach, the Ferrari court declined to impose strict liability on defendant rafting company finding that use of the raft was merely an incident to the overall services provided by defendant. Id. In this regard, defendant “provided all materials for the trip, instructions on rafting safety, and guides to perform the labor and conduct the activities.” Id.

Most recently, in Ontiveros v. 24 Hour Fitness USA, Inc., 169 Cal.App.4th 424 (2008), the Second District Court of Appeal relied upon the dominant purpose test in granting summary judgment for defendant fitness center on plaintiff’s strict products liability claims for injuries sustained while exercising on a stair step machine. Conceding that the facts before it were less compelling than in Ferrari, the court found that no triable issues of fact existed and that the dominant purpose of plaintiff’s membership agreement with defendant fitness center was the provision of fitness services and not the provision of a product, i.e., the allegedly defective exercise equipment. Id., at 434. Specifically, the undisputed evidence demonstrated that plaintiff’s membership agreement entitled her to the use of exercise equipment in addition to other fitness activities, including, aerobics, dance classes, and yoga. Id. Her membership also gave her access to testing centers where she could check her blood pressure and weight. Id. On appeal, plaintiff argued that triable issues of fact existed concerning the dominant purpose of plaintiff’s transaction with plaintiff. In particular, plaintiff claimed that she obtained her membership with defendant for the sole purpose of using defendant’s exercise equipment and that plaintiff did not utilize any of plaintiff’s other fitness services. In rejecting this argument, the reviewing court stated:

“that plaintiff chose not to avail herself of the services provided under her membership agreement does not change the essential nature and purpose of that agreement because it is the terms of her agreement, rather than her subjective intentions, that define the dominant purpose of her transaction with defendant. There is no evidence that plaintiff ever explained to defendant that she only wanted to use its exercise machines, not its services, or that the mutual intention of the parties was to exclude such services. Her uncommunicated subjective intent in that regard is therefore irrelevant.” Id.

Conclusion
As illustrated above, the string of cases following Garcia have declined to extend the court’s ruling beyond the specific facts therein and instead have consistently found strict products liability inapplicable to the hybrid enterprise. These cases, stamped by the most recent decision in Ontiveros, provide persuasive authority for defending a claim of products liability in the mixed purpose transaction.

Four Named Southern California Super Lawyers

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Murchison & Cumming, LLP is pleased to announce that Jean M. Lawler, Friedrich W. Seitz, Michael B. Lawler and Guy R. Gruppie have been named Southern California “Super Lawyers” for 2009 based, on a vote of peers conducted by Law & Politics Magazine. Fewer than 5% of attorneys in the area are so recognized in this annual survey of more than 65,000 attorneys.

Jean M. Lawler is the firm’s Managing Partner, Chairs the Business Transactions Practice Group and Co-Chairs its Insurance Law Practice Group. Ms. Lawler is a Past President of the Federation of Defense & Corporate Counsel (2004-2005) and was awarded the 2006 Service Award by the Defense Research Institute for her years of leadership and service for DRI.

Friedrich W. Seitz is a Senior Partner and Chairs the firm’s Product Liability, Business Litigation and International Law Practice Groups. A reputed trial attorney, Mr. Seitz is an Advocate in ABOTA and has served as Chair of the Product Liability Section of the Federation of Defense & Corporate Counsel.

Michael B. Lawler is a Senior Partner and Co-Chairs the firm’s Employment Law and Health Law Practice Groups. Mr. Lawler is a Past President of the Association of Southern California Defense Counsel and has successfully tried more than 100 cases in the federal and state courts. He is an Advocate in ABOTA and served on ABOTA’s National Board of Directors.

Guy R. Gruppie is a Senior Partner and Chairs the firm’s General Liability & Casualty Practice Group. Mr. Gruppie served as Vice Chair of the Trial Tactics, Practice and Procedures Section of the Federation of Defense & Corporate Counsel from 2004-2008. Mr. Gruppie is also a regular contributor to the FDCC Quarterly.

 

About Murchison & Cumming, LLP

With a firm history dating to 1930, Murchison & Cumming, LLP is a premier civil litigation firm with five offices in California and Las Vegas, whose attorneys specialize in the defense of domestic and international businesses, insurers and individuals, at trial and on appeal. The Firm’s attorneys also handle employment matters and business transactions. For additional information, please visit our website at www.murchisonlaw.com.

Three Named Southern California Super Lawyers

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M&C is proud to announce that Friedrich W. Seitz, Michael B. Lawler and Jean M. Lawler have been named Southern California Super Lawyers® for 2007. Produced by Los Angeles Magazine, the list of Super Lawyers® is based on surveys of more than 65,000 lawyers across Los Angeles and Orange County and honors the top 5% of licensed attorneys in Southern California.

Friedrich W. Seitz is Managing Partner and Chair of the firm’s Product Liability, Business Litigation and International Law Practice Groups. A prominent trial attorney and litigator in both domestic and international matters, Mr. Seitz has served as Chair of the Product Liability Section of the Federation of Defense and Corporate Counsel.

Michael B. Lawler is a Senior Partner and Chairs the firm’s Employment and Health Law Practice Groups. Mr. Lawler is a Past President of the Association of Southern California Defense Counsel and has successfully tried over one hundred jury trials in the federal and state courts. Mr. Lawler was the partner responsible for establishing M&C’s Northern California office.

Jean M. Lawler is a Senior Partner and Chairs both the Business Transactions and Insurance Law Practice Groups. Ms. Lawler is a Past President of the Federation of Defense Corporate Counsel (2004-2005) and was awarded the 2006 Service Award by the Defense Research Institute for her years of leadership and service for that organization.

 

About Murchison & Cumming, LLP

With a firm history dating to 1930, Murchison & Cumming, LLP is a premier civil litigation firm with five offices in California and Las Vegas, whose attorneys specialize in the defense of domestic and international businesses, insurers and individuals, at trial and on appeal. The Firm’s attorneys also handle employment matters and business transactions. For additional information, please visit our website at www.murchisonlaw.com.

Friedrich Seitz to Serve as Panelist at IADC Conference

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MUNICH, GERMANY—Friedrich W. Seitz is slated to serve as a panelist for the International Association of Defense & Corporate Counsel’s (IADC) annual meeting. Mr. Seitz will participate in a panel discussing, “A Hypothetical ESI Request with Focus on Practical Tips and Strategies.”

About the International Association of Defense & Corporate Counsel
The core purpose of the IADC is to enhance the development of skills, professionalism and camaraderie to serve and benefit the members, their clients, as well as the civil justice system, the legal profession and society in general. To learn more about the IADC, please visit http://www.iadclaw.org.