Committed to Justice in Los Angeles and Beyond

A woman and her daughter were in two automobile accidents. One defendant rear-ended them in the first. In the second, another defendant broadsided them while they were driving together two months later. The plaintiffs sued both defendants, and by the time of trial, both defendants had admitted the accidents were their fault; the defendants, however, disputed the accidents caused the full range of injuries the plaintiffs claimed to have suffered.

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The trial court barred the plaintiffs’ neuropsychologist expert witness from opining the traumatic brain injury allegedly suffered by the mother was caused by the accidents because the plaintiffs did not give adequate notice the expert would offer such an opinion and because the expert was in any event incompetent to offer such an opinion. Concluding there was no other substantial evidence that either accident was the cause of her asserted traumatic brain injury and lower back injury, the court later granted the defendants’ motions seeking nonsuit as to those injuries. The appeals court was asked to decide whether the trial court abused its discretion in excluding the plaintiffs’ expert testimony, and whether the trial court properly granted the defendants’ nonsuit motions. For the following reasons, the appeals court affirmed the lower court’s decision.

The appeals court first held that the plaintiffs’ failure to designate the expert to testify on causation was a sufficient ground to exclude his testimony on that topic. The plaintiffs contended the “plain language” of their expert witness declaration gave sufficient notice that he would testify as to the cause of the victim’s alleged traumatic brain injury. Specifically, the plaintiffs quoted language from their expert witness declaration stating that the expert “will express opinions concerning the nature and extent of [the victim’s] injuries sustained in the subject accidents.” That language, the appeals court held, did not suffice to comply with the requirements of the Code of Civil Procedure’s expert disclosure statutes. The terms “nature” and “extent” refer to the type of an injury or its characteristics, as well as perhaps its severity. That, the court explained, is distinct from the concept of causation.

A man was injured while participating in a basic rider training class conducted by Motorcycle Safety Foundation, Inc. at Cerritos Community College. He brought a California motorcycle accident case, and the defendants moved for summary judgment, citing a waiver signed by the plaintiff. The trial court granted summary judgment. The California Court of Appeals for the Second District affirmed.

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The defendants asserted the waiver and release signed by the plaintiff barred all of his causes of action. Under the terms of the waiver, the plaintiff released the defendants from all injuries caused by their negligence or the negligence of others. The defendants met their initial burden of production, the appeals court held. Therefore, the burden shifted to the plaintiff to show a triable issue of material fact existed.

The plaintiff contended the gross negligence cause of action survived the waiver. However, the appeals court reasoned, the plaintiff’s only document in support was the unverified first amended complaint. A party cannot rely on its own pleadings as evidence to support or oppose a summary judgment motion. California Code of Civil Procedure section 437c, subdivision (b)(1) requires the opposing party to demonstrate a triable issue of material fact by “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” The appeals court concluded that the plaintiff failed to demonstrate a triable issue of material fact existed for gross negligence. The defendants were therefore entitled to judgment as a matter of law as to that cause of action.

Last month, a Los Angeles Superior Court jury found that Johnson & Johnson must pay $417 million to a 63-year-old California resident. The plaintiff claimed she developed ovarian cancer from using products like Johnson & Johnson’s Baby Powder for feminine hygiene. The verdict was the largest yet in a series of lawsuits claiming that the New Jersey-based company failed to adequately warn customers about the cancer risks present in their talc-based products.

baby powder
The plaintiff developed terminal ovarian cancer following decades of using Johnson & Johnson talc-based products, specifically, its Baby Powder and Shower-to-Shower products. Her lawyers argued the company encourages women to use its products on their genitals, even though it knows studies link genital talc use to ovarian cancer. The plaintiff allegedly began using the products when she was 11. She was diagnosed with ovarian cancer in 2007.

Her attorneys cited several studies that pointed to a link between long-term genital talc use and ovarian cancer, including a 1982 paper suggesting that women who used talcum powder for routine feminine hygiene faced a 92% increased risk for the disease. They also highlighted internal Johnson & Johnson documents dating back to 1964 to prove that the company was aware of the potential danger.

Following the drowning death of his five-year-old son in a swimming pool owned by other homeowners, a father brought suit against the homeowners for general negligence and premises liability. Finding that the homeowners owed no duty of care and that there was no evidence a dangerous condition on their property contributed to the tragedy, the trial court granted summary judgment. On appeal, the father contended that he raised issues of fact as to the defendants’ duty of care and the dangerousness of the conditions in and around the pool. The California Court of Appeal for the Second District disagreed and affirmed the lower court’s decision.

swimming pool

In their statement of undisputed facts, the defendants established that on June 1, 2014, they hosted a gathering at their home. The boy came with his mother. Neither knew how to swim. When they first arrived, one of the homeowners watched the boy in the “kiddie” or wading area, separated from the main pool by a low rock wall, eight to nine inches above the main pool water level. When the boy’s grandfather, a Captain for the Los Angeles City Fire Department, arrived, he told the homeowner he would take over supervising the boy. The grandfather allowed the boy to play in the shallow end of the main pool. At some point, he lost sight of the boy. He heard a girl scream “‘Where is the little boy?’” He stood up and saw the boy underneath the water. He jumped in and pulled the boy out. Efforts by the grandfather and others to resuscitate the boy were unsuccessful.

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A tree branch fell on a woman while she and her boyfriend were walking through Mission Bay Park. She filed suit against the City of San Diego, alleging the existence of a dangerous condition on public property, namely a negligently maintained eucalyptus tree. The city prevailed on summary judgment, arguing that the woman was struck by the tree branch while standing on a trail; thus, the city could not be liable, pursuant to Government Code section 831.4 (trail immunity).tree branch The woman appealed. First, she asserted that trail immunity does not apply under the facts of this case. To this end, she emphasized that her claim of a dangerous condition was based on a negligently maintained eucalyptus tree, rather than the condition of the trail passing through the park. Second, she contended that even if trail immunity did apply, a disputed issue of material fact existed as to where she was located when the branch struck her. The Fourth District Court of Appeal agreed. The woman’s claim in this case did not give rise to trail immunity. In addition, there was a disputed issue of material fact as to where she was when the branch struck her. Thus, the appeals court reversed.

The appeals court therefore first outlined the applicable law. The complaint alleged a single cause of action for a dangerous condition of public property. Pursuant to section 830(a), a dangerous condition of public property means a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. The elements for that cause of action are: (1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it or a failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff’s injuries; and (5) compensable damages sustained by the plaintiff.

The woman argued the city managed and maintained both Mission Bay Park and the trees within it, including the eucalyptus tree whose branch fell on her. She claimed that between 2004 and 2013, a city employee actively and negligently trimmed the tree’s branches, removing low-hanging and hazardous branches. According to her, the city created and was aware of a dangerous condition on public property, namely the negligently maintained branches of the eucalyptus tree. As a result, she alleged the city was liable for the harm caused by the falling branch.

A pedestrian sued a driver for negligence following a collision between them in which the pedestrian was injured. Before trial, the parties stipulated that the driver was negligent. Therefore, the only issue for the jury to decide was damages. The jury found that the driver’s negligence was a substantial factor in the harm suffered by the pedestrian and returned a verdict of $16,800. After costs and fees, the trial court entered a net judgment for the plaintiff in the amount of $876.85.slingOn appeal, the plaintiff challenged an in limine ruling that excluded evidence. She sought a reversal of the exclusionary ruling and a retrial on the issue of emotional harm and damages. The California Court of Appeal for the Second District disagreed and affirmed.The plaintiff first argued on appeal that the trial court erred by excluding evidence of the defendant’s failure to stop, render aid, and identify herself in violation of sections 20001 and 20003 of the Vehicle Code. Disagreeing, the appeals court first explained that the statutory requirement that drivers of cars involved in crashes resulting in injuries or death must stop and render aid was enacted to protect people injured in an accident and was designed to prohibit drivers from leaving people in distress and danger. These acts are required by all drivers of vehicles involved in accidents causing injuries or death, whether or not they are responsible.

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A February lawsuit filed in San Luis Obispo (“SLO”) Superior Court claims that a member of a California Polytechnic State University (Cal Poly) fraternity chased the plaintiff into a glass panel in the fraternity house. The negligence lawsuit against the fraternity, Alpha Gamma Rho, seeks damages exceeding $25,000. This is one of many controversies in which the fraternity has been involved in recent years.

night beach

The plaintiff was a visitor at the Alpha Gamma Rho fraternity house in 2015. When she tried to leave, an unnamed fraternity brother began to chase her to prevent her from exiting the house. She mistook the floor-to-ceiling glass pane for a door and ran through it, causing “severe” but unspecified injuries. Since she was being chased, she alleges, she was forced to make a split-second decision, which contributed to the accident.

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A woman and her four children sued two doctors and a medical group, alleging a cause of action for the wrongful death of the woman’s husband from medical malpractice during surgery. The doctors and their medical group filed a joint motion for summary judgment, with the doctors invoking the “Good Samaritan Law” (see Bus. & Prof., § 2396) and their group arguing that, absent liability on the doctors’ part, it could have no vicarious liability as their principal. The trial court granted the defendants’ motion. The family appealed, and California’s Second District Court of Appeal affirmed.

hospital room

On May 15, 2012, the husband underwent scheduled, elective shoulder surgery at a hospital in East Los Angeles. A doctor performed the surgery. At the same time that a doctor was performing his shoulder surgery, two other doctor was performing heart surgery in an adjacent operating room.

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A Southern California man recently filed a lawsuit for negligence and assault against a Las Vegas hotel, claiming a mannequin inside his hotel room frightened him and caused him to suffer injuries while fleeing.

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The plaintiff filed the lawsuit against Planet Hollywood Resort and Casino in Clark County District Court. He is seeking over $10,000 in damages.

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A plaintiff appealed from the trial court’s entry of judgment on a jury’s defense verdict in his personal injury lawsuit against Asplundh Tree Expert Company. On appeal, he challenged the sufficiency of the evidence to support the verdict and contended misconduct by Asplundh’s trial attorney also required reversal of the judgment. The appeals court affirmed the judgment.

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In May 2010, the plaintiff and his brother, Peter, decided to trim the cypress trees under a power line in the backyard of the Villa Park home owned by Peter’s in-laws . The power line was about 26 feet off the ground. The brothers used a metal ladder propped against a metal fence, which was about 18 feet high, around a tennis court in the backyard. It was not clear from the plaintiff’s brief whether the homeowners viewed the trees’ proximity to the power lines as a reason to cut them; instead, the record suggested the homeowners’ primary interests included reducing the “sagging” of the trees, presumably from their height or volume, and leveling the tops of the trees into a straight line. The homeowners had not asked Peter to trim the trees, and they were out of town when the brothers embarked on the task as a favor. They managed to safely trim all of the trees to a distance of five or six feet from the power line.

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