Tag Archive for: robert-scherk

Robert Scherk’s Case Featured as Top Defense Case Daily Journal Verdicts & Settlements

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Daily Journal

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The Daily Journal, Verdicts and Settlements Section, published a result in favor of Murchison & Cumming’s client in their Top Defense Cases. In a case involving ADA-compliance renovations, attorney Robert M. Scherk successfully defended Aero Properties and its principal, William Gibbs, against a $5 million demand for alleged negligence and premises liability. The plaintiff, a manager at a Midas shop in San Diego, argued that restroom upgrades led to unsafe conditions, which he claimed caused him injury. Aero Properties argued that as landlords they had no duty to the plaintiff since they had leased the property to his employer. According to Garcia vs. Holt, landlords are only liable for injuries on leased property if they are aware of a hazard and can address it. Aero Properties asserted that they did not know of any dangerous conditions nor had control over the dangerous conditions once the lease was in place.

The court examined these points and found that the landlord had relinquished responsibility through the lease, which placed safety obligations with the tenant. The evidence showed no indication that Aero Properties had knowledge of or control over any alleged hazards.

Summary Judgment and Indemnity Claim Granted to Landlord in Premises Liability Case with $5 Million Demand

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In a case involving ADA-compliance renovations, Murchison & Cumming, LLP attorney Robert M. Scherk successfully defended Aero Properties and its principal, William Gibbs, against a $5 million demand for alleged negligence and premises liability. The plaintiff, a manager at a Midas shop in San Diego, argued that restroom upgrades led to unsafe conditions, which he claimed caused him injury.

Aero Properties, however, argued that as landlords, they had no duty to the plaintiff since they had leased the property to his employer. According to Garcia vs. Holt, landlords are only liable for injuries on leased property if they are aware of a hazard and can address it. Aero Properties asserted that they did not know of any dangerous conditions nor had control over the dangerous conditions once the lease was in place.

The court examined these points and found that the landlord had relinquished responsibility through the lease, which placed safety obligations with the tenant. The evidence showed no indication that Aero Properties had knowledge of or control over any alleged hazards.

Additionally, while the plaintiff attempted to argue that Aero Properties might have implicitly approved dangerous modifications, the court found that the contractor’s work was outside the approved scope of the Building Plans. Ultimately, Aero Properties and William Gibbs were granted summary judgment, successfully defending against the plaintiff’s claims and resolving the $5 million demand in their favor.

This victory was complemented by a successful cross-complaint for indemnity against VB MDS Auto Services, the tenant. Despite VB MDS’s initial refusal to uphold its contractual obligation for defense and indemnity, the court upheld Aero’s position, enforcing their right to indemnity under California Civil Code Section 2778. Aero was awarded summary adjudication on the duty to defend and duty to indemnify, resulting in approximately $165,000 in fees and costs to be reimbursed, marking a significant double victory.

Motion for Summary Judgment Granted in Negligence, Breach of Fiduciary Duty, and Breach of Contract Case

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A motion for summary judgment was granted in San Diego County Superior Court in negligence, breach of fiduciary duty, and breach of contract case. Robert M. Scherk and Lisa M. Allen of Murchison & Cumming, LLP represented the defendants.

The plaintiffs filed their complaint on October 17, 2022 which alleged three causes of against the defendants: 1) Negligence (Legal Malpractice); 2) Breach of Fiduciary Duty; and 3) Breach of Contract. The defendants represented the plaintiffs in a creditor action in Probate Court. The plaintiffs contended that a friend who had died, Dr. Habib, had promised to leave them certain properties, make a trust naming them as beneficiaries, and pay them money to care for Dr. Habib, among other things.

The plaintiff contends that defendants committed legal malpractice by: (a) failing to file any creditor claims for the plaintiffs despite working with the plaintiffs collecting detailed information from them; (b) missing the 120-day Statute of Limitation filing date deadline which is required from creditors to submit timely claims; and (c) incorrectly advising the plaintiffs that their deadline to file claims in the probate court was one year from the date of death of the Decedent. The defendants argued that plaintiff’s claims were barred by the applicable statute of limitations. Further, the plaintiff could not prove the necessary elements of causation and damages.

The court agreed there were multiple different dates which reflect “actual injury” to the plaintiff, each many years before the Complaint was filed, and even assuming, that the statute of limitations was tolled to October 14, 2021, the plaintiff, by her own admission, still failed to file this action within the one (1) year timeline, as this action was not filed until October 17, 2022, three (3) days after the statutory deadline.

The Court agreed that “In the legal malpractice context, the elements of causation and damage are particularly closely linked. The plaintiff must prove, by a preponderance of the evidence, that but for the attorney’s negligent acts of omissions, she would have obtained a more favorable judgment or settlement in the action which the malpractice allegedly occurred.” In this case, the plaintiff admitted in responses to Requests for Admissions that she lacked evidence.

The Court granted Defendants’ Motion for Summary Judgment on both of the grounds argued: Statute of Limitations, and the lack of causation.

Murchison & Cumming Names Two New Partners

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Murchison & Cumming, LLP is pleased to announce Robert M. Scherk and Nancy J. DePasquale have both been elevated to Partner.

Robert M. Scherk is based in the San Diego office focusing his nearly 40-year practice in areas of professional and legal malpractice, general and product liability, premises liability, and business and commercial law. He also conducts Examinations Under Oath for insurers. Mr. Scherk has tried more than 28 cases to verdict and arbitrated or mediated hundreds more to successful conclusion. In 2003, Mr. Scherk was listed in the America’s Registry of Outstanding Professionals, granted to individuals who have demonstrated leadership and excellence in their profession. Mr. Scherk is a member of the San Diego chapter of the American Board of Trial Advocates (ABOTA), is AV-rated by Martindale Hubbell and was listed as a Top Lawyer for six consecutive years by San Diego Magazine.

Nancy J. DePasquale is based in the Irvine office focusing her 30-year practice on complex, high-exposure, catastrophic injury cases. She has broad experience in all areas of tort and personal injury cases— including premises, products, labor and employment, health care malpractice, auto/trucking, business torts, and contract disputes. She is “AV” rated by Martindale Hubbell and is a member of the American Board of Trial Advocates (ABOTA). Ms. DePasquale was an educator in Southern California schools for several years and practiced as a Speech and Language Pathologist with a Certificate of Clinical Competence. This experience has proved invaluable to her legal career and specifically to school representation and employment law issues.

Seven from Murchison & Cumming Named Top Lawyers by San Diego Magazine

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San Diego Magazine

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Murchison & Cumming, LLP is pleased to announce that seven of its attorneys have been recognized as 2019 Top Lawyers by San Diego Magazine. Congratulations to Senior Partner Kenneth H. Moreno, Partners Matthew H. Printz and Jefferson S. Smith, Associate Partners J. Lynn Feldner and Robert M. Scherk, and Of Counsel David M. Hall and Joseph Fox. To compile the list of top lawyers, San Diego Magazine asks Martindale-Hubbell® to share its list of local lawyers that have reached the highest levels of professional excellence.

Kenneth H. Moreno is the Partner-in-Charge of the San Diego office of Murchison & Cumming, LLP. Mr. Moreno handles a variety of specialty cases including employment litigation, professional liability, bad faith, general liability, construction defect, HOA, breaches of fiduciary duties, health law and medical malpractice.

Matthew H. Printz focuses his practice in the areas of construction and general liability law and serves as Co-Chair of the firm’s Construction Law practice group. He has represented numerous developers and subcontractors in construction defect litigation, mechanic’s lien actions, and public works projects and has a background in products liability, personal injury, and professional liability cases.

Jefferson S. Smith is the Co-Chair of the General Liability & Casualty Practice Group and a member of the Hospitality Law practice group. He focuses his practice in the areas of commercial litigation, product litigation, hospitality, medical malpractice litigation and general litigation. Mr. Smith has experience representing self-insured entertainment, landowner, hotel, restaurant, and commercial venues, entities, and individuals.

J. Lynn Feldner focuses her practice in areas of general liability, medical malpractice, construction defect and product liability, and her practice includes substantial experience in complex litigation matters. Ms. Feldner has successfully defended individuals, small businesses and large corporate clients through all aspects of litigation including trials and arbitrations as well as achieving great results through the Alternative Dispute Resolution process.

Robert M. Scherk is a member of the General Liability and Professional Liability practice groups. He focuses his practice in areas of professional and legal malpractice, general and product liability, premises liability, and business and commercial law. Mr. Scherk has tried more than 26 cases to verdict and arbitrated or mediated hundreds more to successful conclusion. He is a member of the San Diego Chapter of American Board of Trial Advocates.

David M. Hall focuses his practice in the areas of construction law and general liability. His experience includes handling matters involving construction defect, insurance bad faith, premises liability and other torts. Mr. Hall’s clients consist predominantly of builders, subcontractors and construction material suppliers. Mr. Hall’s clients consist of subcontractors and construction material suppliers. He is experienced in all phases of litigation, arbitration and mediation. Mr. Hall also has a successful appellate track record.

Joseph Fox serves as Co-Chair of the firm’s Business & Real Estate Transactions practice group and is a member of the General Liability & Casualty and Cannabis Law practice groups. His experience includes handling business formations, purchases and sales of businesses, litigation of business disputes, real property purchase and sale dissolution, disassociation and breach of contract, residential and commercial real property purchase and sale transactions, residential and commercial unlawful detainers, boundary and easement disputes and landlord and tenant matters.

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 and Insuralex Networks.

About Martindale-Hubbell® Peer Review Ratings™
The Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of a lawyer’s high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States. Martindale-Hubbell® Peer Review Ratings™ reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating in five key areas, legal knowledge, analytical capabilities, judgment, communication ability, and legal experience.

Seven from Murchison & Cumming Honored by San Diego Magazine

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Murchison & Cumming, LLP is pleased to announce that seven of its attorneys have been recognized as 2018 Top Lawyers in San Diego by San Diego Magazine. Congratulations to Senior Partner Kenneth H. Moreno, Partners Matthew H. Printz and Jefferson S. Smith, Associate Partners J. Lynn Feldner and Robert M. Scherk, and Of Counsel David M. Hall and Joseph Fox. For its annual Top Lawyers issue, San Diego Magazine invited Martindale-Hubbell® to share its list of local lawyers that have reached the highest levels of professional excellence.

Mr. Moreno is the Partner-in-Charge of the San Diego office and handles a variety of specialty cases including employment litigation, professional liability, bad faith, construction defect, HOA, health law and medical malpractice.

Mr. Printz emphasizes his practice in the areas of construction and general liability law and serves as Co-Chair of the firm’s Construction Law practice group. He has represented numerous developers and subcontractors in construction defect litigation, mechanic’s lien actions, and public works projects.

Mr. Smith focuses his practice in the areas of commercial litigation, product litigation, hospitality, medical malpractice litigation and general litigation. He has experience representing self-insured entities and individuals, including entertainment, landowner, hotel, restaurant, and commercial venues.

Ms. Feldner focuses her practice in areas of general liability, medical malpractice, construction defect and product liability, and her practice includes substantial experience in complex litigation matters. She is currently a volunteer for Voices for Children as a CASA (Court Appointed Special Advocate) for a foster child. Her role is to be an advocate for the best interests of the child to ensure the foster child is being well cared for in the foster care system.

Mr. Scherk focuses his practice in areas of professional and legal malpractice, general and product liability, premises liability, and business and commercial law. Mr. Scherk is a member of the San Diego chapter of the American Board of Trial Advocates (ABOTA) and is an experienced trial attorney.

Mr. Fox focuses his practice on business formations, purchases and sales of businesses, litigation of business disputes, breach of contract actions, residential and commercial real property purchase and sale transactions, and unlawful detainer actions.

Mr. Hall focuses his practice in the areas of construction law and general liability. His experience includes handling matters involving construction defect, vehicular and construction site accidents, premises liability and other torts.

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 and Insuralex Networks.

About Martindale-Hubbell® Peer Review Ratings™
The Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of a lawyer’s high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States. Martindale-Hubbell® Peer Review Ratings™ reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating in five key areas, legal knowledge, analytical capabilities, judgment, communication ability, and legal experience.

Six from Murchison & Cumming Honored by San Diego Magazine

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San Diego Magazine

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Murchison & Cumming, LLP is pleased to announce that six of its attorneys have been recognized as 2017 Top Lawyers in San Diego by San Diego Magazine. Senior Partner Kenneth H. Moreno and Of Counsel Joseph Fox are listed in the field of Business & Real Estate Transactions, Partner Jefferson S. Smith in the field of Business Litigation, Associate Partner Robert M. Scherk in the field of Professional Liability, and Partner Matthew H. Printz and Associate Partner J. Lynn Feldner in the field of Construction.

Mr. Moreno handles a variety of specialty cases including employment litigation, professional liability, bad faith, general liability, construction defect, HOA, breaches of fiduciary duties, health law and medical malpractice. Mr. Fox focuses his practice business formations, purchases and sales of businesses, litigation of business disputes, real property purchase and sale dissolution, disassociation and breach of contract, residential and commercial real property purchase and sale transactions.

Mr. Smith focuses his practice in the areas of commercial litigation, product litigation, hospitality, medical malpractice litigation and general litigation. He has experience representing self-insured entertainment, landowner, hotel, restaurant, and commercial venues, entities, and individuals. Mr. Scherk focuses his practice in areas of professional and legal malpractice, general and product liability, premises liability, and business and commercial law. Mr. Printz emphasizes his practice in the areas of construction and general liability law and serves as Co-Chair of the firm’s Construction Law practice group. He has represented numerous developers and subcontractors in construction defect litigation, mechanic’s lien actions, and public works projects. Ms. Feldner focuses her practice in areas of general liability, medical malpractice, construction defect and product liability, and her practice includes substantial experience in complex litigation matters.

For its annual Top Lawyers issue, San Diego Magazine invited Martindale-Hubbell® to share its list of local lawyers that have reached the highest levels of professional excellence.

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 and Insuralex Networks.

About Martindale-Hubbell® Peer Review Ratings™
The Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of a lawyer’s high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States. Martindale-Hubbell® Peer Review Ratings™ reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating in five key areas, legal knowledge, analytical capabilities, judgment, communication ability, and legal experience.

Six from Murchison & Cumming Honored by San Diego Magazine

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Murchison & Cumming, LLP is pleased to announce that six of its attorneys have been recognized as 2016 Top Lawyers in San Diego by San Diego Magazine. Senior Partner Kenneth H. Moreno and Of Counsel Joseph Fox are listed in the field of Business & Real Estate Transactions, Partner Jefferson S. Smith in the field of Business Litigation, Associate Partner Robert M. Scherk in the field of Professional Liability, and Partner Matthew H. Printz and Associate Partner J. Lynn Feldner in the field of Construction.

For its annual Top Lawyers issue, San Diego Magazine invited Martindale-Hubbell® to share its list of local lawyers that have reached the highest levels of professional excellence.

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 and Insuralex Networks.

About Martindale-Hubbell® Peer Review Ratings™
The Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of a lawyer’s high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States. Martindale-Hubbell® Peer Review Ratings™ reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating in five key areas, legal knowledge, analytical capabilities, judgment, communication ability, and legal experience. Learn more at http://www.martindale.com/ratings.

San Diego Magazine Recognizes Five Murchison & Cumming Attorneys

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SAN DIEGO – Murchison & Cumming, LLP is pleased to announce that five of its attorneys have been recognized as 2015 Top Lawyers in San Diego by San Diego Magazine.

This year’s honorees include:

Kenneth H. Moreno
Robert M. Scherk
Jefferson S. Smith
J. Lynn Feldner
Matthew H. Printz

For its annual Top Lawyers issue, San Diego Magazine had Martindale Hubbell® share its list of local lawyers that have reached the highest levels of professional excellence. All of the attorneys have been selected for this honor for three consecutive years.

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 and Insuralex Networks.

Robert M. Scherk Elected to American Board of Trial Advocates Membership

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SAN DIEGO – Associate Partner Robert M. Scherk has been elected to membership in the American Board of Trial Advocates (ABOTA) and the San Diego Chapter of ABOTA. Membership requirements include trial ability/experience, personal character, and reputation among the bench and bar.

ABOTA membership is one of that nation’s highest honors for trial lawyers, and Mr. Scherk joins Murchison & Cumming Senior Partners Guy R. Gruppie, Friedrich W. Seitz, Michael B. Lawler and Michael D. McEvoy as ABOTA members.

Mr. Scherk has tried more than 24 cases to verdict, and arbitrated or mediated hundreds more to successful conclusion. All of Mr. Scherk’s trials have been Superior Court jury trials, except for three bench trials, and one tried in US Bankruptcy Court. Mr. Scherk’s trial experience ranges from product and premises liability, to legal malpractice, wrongful death, conversion, motor vehicle, and interference with contractual relations. Mr. Scherk has sat as a Judge Pro Tem, Los Angeles Superior Court and has served on attorney settlement panels for both the Los Angeles and San Diego Superior Courts. He is a member of the Tort and Trial section of the American Bar Association, is AV-rated by Martindale Hubbell and was listed as a Top Lawyer in Professional Liability by San Diego Magazine.

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 and Insuralex Network. For additional information, please visit our website at www.murchisonlaw.com.