Tag Archive for: robert-panman

Superior Court finds in Favor of Defense in ADA Discrimination Case

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The Pomona Superior Court found in favor of Murchison & Cumming’s client, a property owner, in an ADA Discrimination case. Robert H. Panman and Adrian Barrio represented the defendant.

In the case Richard Murillo v. J&J Baldwin Park, LLC, Mr. Murillo is a disabled individual that took his motorized wheelchair to a property in Baldwin Park to visit a bank. The plaintiff claimed that the property violated the law by discriminating against the disabled and sought relief under the American’s with Disability Act, and damages, attorney’s fees, and an injunction.

Defendant disputed the claim after making a settlement offer via CCP 998, and elected to take the case to trial in Pomona. Defendant contended that there was not only evidence which established the claims were not actionable, but there was evidence which potentially called into question the credibility of the claims.

As a result, the court found in favor of the defendant.

Superior Court Grants Summary Judgment in Emotional Distress Case

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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.

Unanimous Defense Verdict Awarded in Million Dollar Construction Zone Case

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M&C’s Las Vegas office had cause to celebrate when–in less than three hours–a jury returned a unanimous defense verdict in favor of its client, Advanced Traffic Safety (“ATS”). During the nine-day trial, co-tried by Michael J. Nunez and Robert H. Panman, the jury was asked to award over $1.7 million dollars in damages for plaintiff’s alleged brain injury and spinal damage.

The plaintiff’s case centered around events of October 2003 during his drive home on surface streets in Las Vegas. As the plaintiff made his way through a construction zone and into a T-intersection, he moved from his lane of travel to a paved shoulder lane to his right. Following this move, plaintiff’s vehicle collided with another vehicle. The other vehicle was driven by a job foreman of the general contractor who had just left the work site. ATS was responsible for the traffic safety devices in the construction zone.

Plaintiff argued that the construction signs and cones in the area, and ATS’s failure to exercise reasonable care in the design, implementation and maintenance of the traffic control devices caused this accident. The general contractor and its job foreman also sued ATS.

At trial, M&C was able to show that ATS properly used and maintained the traffic control devices at the site. In addition to disputing liability, Nuñez and Panman presented evidence to the jury which called into question the nature and extent of plaintiff’s injuries. As a result of its win, M&C is currently making a motion for its attorney’s fees and costs.

Summary Judgment Granted in Landslide Case

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Robert H. Panman and Adrian J. Barrio recently won a summary judgment motion on behalf of their client, Mountains Restoration Trust (“MRT”). The case arose out of a 2005 Malibu landslide. After heavy rains, a good portion of the hillside behind co-defendant’s property slid down into the bottom of the ravine through, and onto, property owned by MRT, a public entity. Plaintiff alleged that the course of a waterway was re-directed in such a way as to cause movement and instability of plaintiffs’ property as a result of this slide. The waterway ran through MRT’s property at the bottom of the ravine. Plaintiffs asserted claims of nuisance, trespass, and negligence.

The Court granted MRT’s summary judgment because (1) as a public entity, MRT is statutorily immune from liability for damage caused by “natural conditions” on its property under Government Code sections 831.2 and 831.25, and (2) erosion constitues a “natural condition” as a matter of law and a public entity cannot be held liable for damage to an adjacent property caused by erosion.

M&C Receives Favorable Judgment in Property Dispute

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Robert H. Panman recently received a judgment in favor of clients who were defendants in an action for Nuisance, Damages and Seeking Injunctive Relief.

The dispute was between two neighbors who owned homes in the Windsor Square area of Los Angeles. The plaintiff sued her neighbors, claiming that a portion of their home, which was built and permitted in 1948, encroached onto her property. In addition to this claim, the plaintiff asserted at trial that trees, plants and other foliage between the two properties constituted a nuisance and had caused her harm including damage to a garage structure that had been built in the 1920’s for which she sought a Mandatory Injunction and damages. Robert Panman was lead counsel for defendant.

Two Named Rising Stars

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M&C is pleased to announce that Michelle A. Hancock and Robert H. Panman have been named Rising Stars® for 2007. Produced by Los Angeles Magazine, also producers of Super Lawyers®, Rising Stars® are attorneys 40 years or under, or who have been practicing 10 years or less. Approximately 2.5% of the lawyer-nominated attorneys in the state are named to the Rising Stars list.

Michelle A. Hancock is a Senior Associate in the firm’s Orange County office and a member of the Health Law, Products Liability and General Liability Practice Groups. Her emphasis is on Elder Law, specifically long term care issues, providing counsel and defense to skilled nursing facilities, assisted living facilities and home care providers for the elderly and developmentally disabled adults. Ms. Hancock has had success both inside and outside of the courtroom, in representing her clients and bringing them outstanding results.

Robert H. Panman is a Senior Associate in firm’s Los Angeles office, and a member of the General Liability and Construction Law Practice Groups. He has successfully litigated cases in a diverse range of practice areas including Wrongful Termination and Discrimination, Personal Injury, Real Estate, and Construction Defect. This is the second year in a row Mr. Panman has been chosen as a Rising Star®.

 

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.

Window Manufacturers Successful in Construction Defect Trial

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Tom E. Dias successfully defended Rolleze, Inc. and Robert H. Panman successfully defended California Windows Corporation, in a complex construction defect action involving 102 homeowners. Plaintiffs’ experts alleged that the windows installed in the 102 single-family homes were defective and needed to be replaced. Rolleze products were installed in 39 of the homes, while California Windows Corp. products were installed in 15 of the 102 homes. The plaintiffs argued that the windows did not have a sufficiently high rating for the homes.

On behalf of their respective clients, Mr. Dias and Mr. Panman argued that the windows were in fact, properly rated and that there was no evidence that the window products were defective when they were delivered to the job site.

The plaintiffs’ case went to the jury against the developer, roofers, framers, stucco subcontractors, window manufacturers and garage door manufacturers. Plaintiffs asked the jury to return a verdict of 7.5 million dollars, while the defense argued the case had a value of approximately 1 million dollars. The demand to Rolleze was more than $400,000, while the demand to California Windows was in excess of $200,000. During the course of the trial, Plaintiffs abandoned their claims for personal injury from exposure to mold.

Prior to trial, the judge dismissed two Rolleze homeowners and three California Windows homeowners. Cases against the remaining 37 Rolleze homeowners and 12 California Windows Corp. homeowners went to jury.

After three and a half months of trial and another four weeks of deliberation, the jury returned a defense verdict in favor of Rolleze on 16 homes and awarded plaintiffs damages in the sum of $8,640.00 (inclusive of Stearman costs) against Rolleze for the remaining 21 homes.

California Windows received a full defense verdict on eight of the homes. On the remaining four, plaintiffs were awarded $1,550.00. Plaintiffs’ total recovery on all issues, against all defendants, was $771,955.00 (inclusive of Stearman costs).

After speaking with jurors, the defense learned that the jury found no defect with the window product and only awarded damages against Rolleze and California Windows for water intrusion at sliding glass doors (which Rolleze and California Windows both manufactured and installed) and for fogging of some dual glazed windows. The jury determined that the framing and stucco subcontractors were 100% responsible for water intrusion at all other windows due to defective installation.

“This was a terrific verdict. There is a strong belief amongst the industry that settlements in these cases no longer reflect the true value of the claim and instead are driven by the cost of defending a case of this magnitude through trial. This verdict sends a message that insurance carriers can and will successfully try these cases, which will result in evidence based settlement negotiations as opposed to settlement discussions based on defense costs,” said Mr. Dias.

Understanding the Americans with Disabilities Act

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By: Robert H. Panman

Although all Titles of the ADA strive to elimination of discrimination against persons with disabilities, each Title has different rules, regulations, affirmative defenses and remedies available to plaintiffs. Title I governs employment situations, Title II governs public entities and Title III governs access to public accommodations and services.

Employers Do Not Violate ADA Where An Employees’ Disability Poses A Direct Threat To His Own Health

Although Title I of the ADA protects disabled persons from job discrimination, it provides that employers “may include a requirement that an individual not pose a direct threat to the health or safety of other individuals in the workplace.” The Equal Employment Opportunity Commission (“EEOC”) expanded this to allow employers to screen out potential workers whose disabilities created a risk on the job to the employees’ own health or safety. In Chevron U.S.A., Inc. v. Echazabal, 2002 DJDAR 6379, the United States Supreme Court held that this EEOC regulation was permissible.

There, plaintiff worked for an independent contractor at an oil refinery owned by Chevron. He applied for a job directly with Chevron, who agreed to hire him if he passed a physical examination. Because Plaintiff’s examination showed liver damage caused by Hepatitis C, Chevron withdrew its employment offer after its doctor said plaintiff’s condition would worsen with continued exposure to toxins at the refinery. Chevron also asked the contractor to reassign plaintiff to a job where there was no exposure to harmful chemicals or to remove plaintiff from the refinery altogether. When the contractor laid plaintiff off, plaintiff filed suit alleging that Chevron violated the ADA by refusing to hire him and let him continue to work at the refinery on account of his liver condition.

The District Court granted summary judgment for Chevron based on the EEOC regulation, which was reversed by the 9th Circuit. The United Supreme Court disagreed, reversing the 9th Circuit and finding the EEOC regulation applicable to ADA claims.

Plaintiff Need Not Attempt To Gain Access To Premises To Have Standing Under Americans With Disabilities Act

In Pickern v. Doran, 2002 DJDAR 6829, an architectural barrier ADA case, the Ninth Circuit recently held that, (1) where a disabled person has actual knowledge of illegal barriers, plaintiff need not attempt to gain access to premises if such an attempt would be futile, and (2) so long as plaintiff visits the premises a year before he files suit, his action is timely. Plaintiff, a paraplegic who used a wheelchair, alleged that he could not go shopping at a particular grocery store due to inadequate access to and from the parking lot, the check-stands, restrooms and vending machines. Plaintiff admitted that the first time he was aware of the alleged illegal barriers was prior to 1998 while visiting his grandmother, and that he visited the store only once again in late 1998.

On appeal to the 9th Circuit, the court held that the plain language of the ADA does not require a disabled person “. . . to engage in a futile gesture if such person has actual notice that a person or organization . . . does not intend to comply” with the ADA. Accordingly, under ADA, once a plaintiff is aware of discriminatory conditions at a place of public accommodation and is deterred from visiting the accommodation, plaintiff need not have personally encountered all of the barriers barring access to seek an injunction to remove those barriers. Such a plaintiff has suffered an “actual harm” and, thus, has standing to sue. The 9th Circuit also found that plaintiff is entitled to injunctive relief for any injury occurring within the limitations period, as well as for “threatened future injury”. Because plaintiff stated that, at the time he filed his complaint, he was aware of barriers to access that continued to exist at the store and that the barriers currently deter him, his lawsuit was not time-barred.

United States Supreme Court Rules On Availability Of Punitive Damages Under The Americans With Disabilities Act And Rehabilitation Act

In Barnes v. Gorman, 2002 DJDAR 6713, the US Supreme Court held that punitive damages are not available to plaintiffs in ADA suits brought under Section 202 of the ADA (prohibiting discrimination against disabled individuals by public entities) or section 504 of the Rehabilitation Act (prohibiting discrimination against the disabled by recipients of federal funding), noting that these statutes apply only to public entities and programs which are the recipients of federal funding. In this matter from the 8th Circuit, after reviewing these ADA statutes in connection with cases which invoke Congress’ power under the Spending Clause of the Constitution, the court found that because Spending Clause legislation is in the nature of a contract, the scope of damages is likewise contractual and punitive damages are not available for breach of contract claims. Thus, no punitive damages are recoverable for violations of these particular statutes.

Here, Plaintiff, a paraplegic confined to a wheelchair, was arrested after fighting with a bouncer at a nightclub. The arresting police removed plaintiff from his wheelchair and used a seatbelt to strap him to a narrow bench in the rear of their van. Fearing that the seatbelt placed excessive pressure on his urine bag, plaintiff released his seatbelt causing him to fall to the floor, injuring his shoulder and back and resulting in his inability to work. Plaintiff sued members of the police commission, the officer who drove the van and the chief of police claiming they had discriminated against him by failing to maintain appropriate policies for the arrest and transport of disabled persons. The jury awarded one million dollars in compensatory damages and 1.2 million in punitive damages, which punitive damages were disallowed by the Supreme Court’s ruling.