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Two people recently filed a California premises liability claim based on an alleged beating in the Dodger Stadium parking lot following a 2015 playoff game. The victim claims to have suffered a traumatic brain injury from the attack. The plaintiffs filed suit in L.A. Superior Court against the Dodgers and the two alleged attackers. The lawsuit claims negligence, negligent hiring, premises liability, intentional infliction of emotional distress, battery, assault, and loss of consortium. The victim’s wife claims she has lost the companionship and love of her husband since he was injured.

Mets fan
According to court documents, the victim attended the first game of the National League Division Series on October 9, 2015 against the Mets. He is a Dodgers fan, but his cousin, also in attendance, is a Mets fan who wore a Mets hat.

The Mets won the game. The victim and his friends left the stadium at around 10 p.m. Outside, they were confronted by the assailants, who shouted vulgarities at the group. By the time the group reached the handicapped parking area, the assailants began to “brutally attack” him. One of them allegedly struck the victim in the head. Losing consciousness, he fell to the pavement. The assailants nonetheless began to kick the victim while he lay unconscious on the ground.

Plaintiffs appealed from a judgment following a jury verdict in favor of the defendant in a California elder abuse action arising from the medical care and death of an elderly woman. On appeal, they challenged the special verdict form, the jury instructions, the exclusion of evidence, and the conduct of the jury. The Third District California Court of Appeal affirmed.

old woman
The decedent had chronic obstructive pulmonary disease and pneumonia. Upon admission to the defendant’s facility, her life expectancy was at most a “few months,” her chance of leaving the hospital was “darned close to zero,” and she would never “continuously” be off a ventilator. According to one expert, her life expectancy at the time of her admission “would be a few months only if aggressive measures were taken that most physicians would not conscience in a patient because of the pain and suffering it caused the patient. It only lasted for a few months because they persisted in care that I know they didn’t want to give.”

Since the decedent was on a ventilator, her arterial blood gas had to be monitored. The defendant did this by using needles, rather than an arterial line (a fixed line inserted into an artery) from which blood could be tapped and then tested. Using needles was more difficult than in an ordinary patient because of the decedent’s extreme bodily swelling. But expert testimony showed that inserting an arterial line would have required cutting into the decedent and exposing her to infection—to which she was already woefully prone—and that the decision whether or not to use so-called “blind sticks” fell within a physician’s standard of care. Furthermore, the decision did not harm the decedent.

While riding his bicycle, a victim collided with the door of a driver’s personal vehicle when the driver opened the door. The bicyclist sued the driver and the driver’s employer, alleging negligence and respondeat superior liability. The lower court granted summary judgment in the employer’s favor on the ground that the “going and coming” rule barred employer liability for this California bicycle accident during his commute to work. The bicyclist argued the defendant did not meet its initial burden of production on summary judgment to show the going and coming rule applied. He further argued triable issues of material fact existed as to the rule’s applicability here. The California Court of Appeal for the Fourth District held that whether the going and coming rule applied in this case could not be decided as a matter of law; therefore, it reversed the summary judgment.

bicyclist
On October 16, 2014, the driver drove his personally owned Chevrolet Suburban from his home and parked on Brandywine Ave. He stayed in his personal vehicle for a few minutes to gather his phone, wallet, and other items. The victim was riding his bicycle and struck the door of the driver’s personal vehicle as soon as the driver opened it.

He filed suit, alleging he suffered injuries during the accident and pleading a respondeat superior theory. The employer moved for summary judgment on the grounds that it was not liable for the injuries under respondeat superior, and undisputed facts showed the going and coming rule barred the claim. They stated that “Hunt did not have a fixed office location that he commuted to on a regular basis, but instead as a territory manager for A-Z Bus, would regularly drive to his rental vehicle to make sales calls. As such, his company-reimbursed rental vehicle was his ‘fixed place of business’ and his commute to and from the rental car was his normal commute that fell under the going and coming rule.”

A plaintiff brought a lawsuit against Valencia-Penales Care Services, Inc. and two individuals in connection with injuries she incurred from a fall. The matter proceeded to a jury trial. The plaintiff appealed from a judgment and order denying her motion for a new trial, contending that the non-economic damages she was awarded by the jury were inadequate. The California Court of Appeal for the First District disagreed and affirmed the judgment.

old woman
In January 2015, the plaintiff was living alone in an apartment at Redwood Retirement, an adult living facility. She was 91 years old, suffered from macular degeneration, and at times used a cane or walker. She fell while getting back into her car after visiting the store with her caretaker. One of the issues at trial was her mental and physical condition before and after her fall.

The jury found no negligence on the part of the individual defendants, but it rendered a verdict for the plaintiff on her negligence claim against Valencia-Penales. The jury apportioned 45% of the responsibility for her harm to Valencia-Penales. It awarded the plaintiff her requested past economic damages totaling $44,506.65, future economic damages in the amount of $126,000 for caregiving services, and $5,000 for non-economic damages.

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.

car accident
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.

motorcycle
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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