The Firm Announces the Addition of Daniel Dean as Senior Counsel
The Firm is pleased to announce the addition of Daniel Dean, a former partner with Taylor Gutierrez Marca LLP, as Senior Counsel.
For the second time in four years, Shahab E. Fotouhi has been named to the list of Northern California “Super Lawyers®” for 2008, as published in the August issue of San Francisco magazine and in the companion Northern California Super Lawyers. Super Lawyers is a list of the top five percent of attorneys in the area as chosen by their peers and through the independent research of Law & Politics, a Minneapolis-based trade publication.
Mark J. Divelbiss and Shahab E. Fotouhi recently obtained a $1.1 million judgment in favor of a surety and against its principal arising out of construction of a sewage plant in Northern California. The principal’s work on the plant was found to have been defective. The sewage plant owner obtained an award against the principal following a lengthy arbitration. The firm’s client paid the award based upon the performance bond issued to the principal. On behalf of the surety, and based upon the indemnity language in the bond, the firm filed suit against the principal seeking reimbursement of funds paid to satisfy the arbitration award. In response, the principal argued that although it had arbitrated the case against the owner of the sewage plant on his own accord, the firm’s client was required to have stepped in earlier and provided the principal with a defense in the arbitration proceeding and that the lack of such a defense resulted in the arbitration award. The Solano County Superior Court granted the firm’s Motion for Summary Judgment based upon the firm’s argument that the surety had no such obligation. The matter is on appeal.
In March 2008, attorneys Shahab E. Fotouhi and Wendy L. Hillger secured an outright dismissal in a case brought by the insured against its insurance company.
At issue was whether the firm's client, an insurance company, wrongfully failed to pay a claim. The insured, a truss manufacturer, incurred significant damages at a construction project. The insured paid the damages and made a claim to the insurer, who denied any duty to pay based upon the requirements of the insurance policy. The insured sued the firm's client for breach of contract and bad faith seeking recovery of the paid claims, punitive damages and attorney’s fees. During the firm's investigation, documents damaging to the insured's claim were uncovered, and the firm wrote a "meet and confer" letter seeking a dismissal. The insured thereafter agreed to drop its claim against the firm's client.
In the Spring of 2008, Wendy Hillger brought and prevailed on a motion for summary judgment in a case arising from a home inspection. The lawsuit was filed by an aggrieved property owner who claimed that the firm's client, a general contractor, failed to use due care when he performed a pre-purchase property inspection. The asserted damages against the firm's client were in excess of $2.2 million. The motion was based upon the statute of limitations. The firm argued that the property owner was on "inquiry" notice; the property owner had information which should cause a reasonable person to inquire further concerning the claimed problems at the home. The property owner argued that he did in fact perform a proper investigation upon receiving the information, but nevertheless did not discover the inspector's negligence until 1 year later. The Kern County Superior Court judge agreed that the property owner did not file the lawsuit in a timely manner, and granted judgment in favor of the firm's client.
In July 2007, Wendy Hillger presented a seminar to the real estate professionals at TRI/ Coldwell Banker. The sales agents were advised about the ever-changing legal landscape of buying, selling and owning residential property in San Francisco.
The Firm is committed to providing education and counseling services to its clients. If you are interested in having a seminar, please contact us.
After a two week trial, Darren W. Epps obtained a defense verdict on June 21, 2007 in a trip and fall case venued in Fresno County Superior Court. Plaintiff, a 48 year old nurse, claimed to have suffered two fractured toes in her left foot and a torn meniscus in her right knee as a result of tripping and falling over a metal sleeve at Clovis High School. She was walking to a classroom to attend a meeting of the school golf team parents when she approached a walkway near the gym containing four metal sleeves approximately six inches in diameter which protruded three to four inches above the ground. The sleeves were intended to be used with removable bollards (metal poles) to control vehicular traffic through the area. The bollards had been removed from the sleeves and were not in place when the incident occurred. Plaintiff sued the firm’s client, a general contractor who was performing renovation construction at the gym near the site of the incident, and the Clovis Unified School District (CUSD). She claimed the firm’s client removed the bollards to gain access to the gym and failed to replace them as required by their contract and school policy, and that CUSD created a dangerous condition of public property by having the sleeves protrude above the ground instead of cutting them flush. At trial, plaintiff introduced expert testimony that the firm’s client negligently failed to replace the bollards at the end the work day and that the configuration of the bollard/sleeve system created a dangerous condition of public property. Plaintiff’s medical expert opined that she suffered a torn meniscus in her knee as a result of the incident which required surgical repair and that she would require complete knee replacement surgery in the future. The jury returned a defense verdict on behalf of the firm’s client, but held CUSD 75% responsible for the incident with 25% comparative fault attributed to plaintiff.
In May 2007, Shahab Fotouhi was named the new President of the Board of Governors of USF Law School. Mr. Fotouhi has served on the board for the last five years.
In May, 2007, Darren W. Epps brought a motion to dismiss a lawsuit brought by a collection agency against the firm’s client seeking payment of moneys allegedly owed. In addition to prevailing on the motion and obtaining a dismissal of the lawsuit, Mr. Epps also successfully obtained an award of sanctions against the collection agency for its conduct during litigation.
In the Spring of 2007, Michael J. Gilroy and Lynn Simons successfully brought and prevailed on a motion for summary judgment in a bad faith/legal malpractice case filed by a disgruntled insured against his insurance company and house counsel. The lawsuit alleged that the insurance company had been forced to settle the underlying matter after house counsel had botched the case exposing the insured to higher insurance premiums and other alleged consequential damages. The firm argued that there were no discernable or recoverable damages as a matter of law. The court granted the motion in its entirety terminating the case and awarding costs.
In February 2007, attorneys Shahab E. Fotouhi and Wendy L. Hillger secured a settlement in the amount of $127,500 on behalf of an insurance company. The settlement represented one-half of costs the Firm’s client expended to defend a serious personal injury and property damage case.
At issue was the contested existence of an “Additional Insured” endorsement. The Firm’s client asserted that, because of an “Additional Insured” endorsement, the two insurers should defend and indemnify the insured on a pro rata basis. Throughout the underlying claim defense, defendant insurance company denied that the Firm’s client was entitled to any coverage. In the coverage litigation, defendant insurance company again denied that the Additional Insured endorsement was valid, asserting that the endorsement was not issued prior to the incident, and further denied that the endorsement language provided coverage for the client’s insured.
On the eve of Arbitration, the insurance company settled for the full value of the claim.
In December 2006, attorneys Shahab E. Fotouhi, Wendy L. Hillger and Bryan L. Saalfeld prevailed on a negligent security case when the Court agreed that the firm’s client did not have a duty to prevent the incident in question. Plaintiff filed suit against a major retailer, claiming she was assaulted by an
unidentified man while in the dressing room of the retailer’s San Diego store. She contended that the firm’s client did not have sufficient security stationed at the store. Based upon evidence presented to the Court, including information relative to the client’s security procedures and the unforeseeable nature of the incident, the San Diego Superior Court granted the firm’s Motion for Summary Judgment.
Wendy L. Hillger has been invited to join the McFetridge chapter of
the American Inns of Court. The purpose of the American Inn of
Court is to inculcate and cultivate the best qualities of the great
trial advocates: honesty, courage, industry, judgment, eloquence, wit
and fellowship. To this end, members learn side-by-side with the most
experienced judges and attorneys in their community. The chapter
meetings are held in the courtroom of Federal Judge Thelton Henderson.
In the summer of 2006, Darren W. Epps obtained a voluntary dismissal on behalf of the firm’s client who performed rough grading work at a multi-million dollar commercial construction project in Arroyo Grande. Plaintiffs sought $7 million for water intrusion and other construction defect damages associated with alleged defects in the original planning and construction of the project. Mr. Epps convinced the property owners and general contractor to dismiss the firm’s client for a waiver of costs.
In June 2006, Shahab E. Fotouhi and Mark J. Divelbiss secured a
judgment in the amount of $1.76 million on behalf of a major San
Francisco commercial landlord in a dispute with its tenant. The tenant,
a construction company, had breached its lease with the landlord
claiming that it had performed construction activities for the landlord
in exchange for waiver of rents. The firm’s client contended that the
work performed by the tenant was merely an agreement to extend the
payment date for past due rents. The Court awarded the firm’s client the
entire lease value, past and future, including attorneys’ fees and
costs, and pre-judgment interest.
FOTOUHI • EPPS • HILLGER • GILROY LLP is pleased to announce that
Bryan L. P. Saalfeld has joined
the firm as an associate.
On April 18, 2006, and after a seven week trial, Shahab E. Fotouhi
and Daniel P. Iannitelli obtained a defense verdict in a serious
personal injury case in Butte County Superior Court. Plaintiff, a 34
year old low
voltage electrician, claimed that he was electrocuted by 277 volts while
performing work at a commercial site in Chico California. He claimed
that the electrical wire to which he was exposed was negligently left
unprotected by the firm’s client, the general electrician. Plaintiff claimed
that the electrical shock traveled to his brain, resulting in serious
cognitive deficit and rendering him fully disabled. At trial, plaintiff
introduced the testimony of no less than four doctors, including two
psychologists who opined that plaintiff was seriously injured as a
result of the incident and disabled for life. The doctors uniformly
testified that the electrical shock had traveled to plaintiff’s brain
resulting in organic brain syndrome. Additionally, plaintiff introduced
the testimony of fourteen other witnesses, who all claimed that
plaintiff was a different man after the accident than before.
Plaintiff’s life care planning expert testified that plaintiff would
require full-time in home care given his condition and his injuries. His neuro-psychologist opined that plaintiff’s I.Q. went from 105 before the
accident to 30 after the accident. His economist opined that plaintiff’s
economic loss, including past and future medical expenses and past and
future wage loss was $2.5 million. Plaintiff’s wife also put forth a
claim for loss of consortium. During closing arguments, plaintiffs’
counsel asked the jury return a verdict in the amount of $15 million,
which comprised of $2.5 million in economic damages and $12.5 million in
non-economic and loss of consortium damages.
Prior to trial, plaintiff entered into settlements with the general
contractor and another subcontractor. The firm’s client was the sole
defendant at trial.
At trial, the firm's client contended that the accident was not due to any
negligence on its part. Rather, the defense took the position that
plaintiff’s accident was solely due to his own negligence. Additionally,
the defense took the position that plaintiff is a malingerer, who
exaggerates the symptoms of the injuries he allegedly sustained as a
result of the accident. Defense surveillance video shown to the jury
revealed plaintiff performing a number of activities he claimed he could
not perform. The defense neuro-psychologist supported the contention
that plaintiff was a malingerer; he testified that plaintiff presented
with symptoms of anti-social personality disorder.
After deliberating for just three hours, the jury returned a defense
verdict, finding that the firm’s client was not negligent.
On behalf of a primary carrier in a significant personal injury matter,
Shahab E. Fotouhi obtained a defense verdict in a coverage dispute
between the firm’s client and the excess carrier. The case was venued in
San Francisco Superior Court. The firm’s client was sued by the excess
carrier for reimbursement of defense fees and costs expended by the
excess carrier in the defense of the mutual insured. The excess carrier
claimed that although the firm’s client had tendered its policy limits,
the primary carrier was required to reimburse the excess carrier
expenses associated with the defense of the case by counsel selected by
the excess carrier, without agreement from the firm’s client. The excess
carrier sought more than $800,000 in fees and costs associated with the
defense of the underlying case. Since the underlying matter had not yet
resolved at the time of trial, the excess carrier also sought a
declaration from the Court mandating the firm’s client to pay all
expenses associated with the defense of the case by the excess carrier’s
selected counsel.
After a five day Court trial, and numerous post-trial hearings, Judge
Thomas Mellon of the San Francisco Superior Court ruled in favor of the
firm’s client, finding that it had no obligation to reimburse the excess
carrier the amounts incurred in defending the underlying case. The Court
also rejected the request for declaratory judgment. The Court awarded
the firm’s clients all costs incurred in defending the action.
Shahab E. Fotouhi recently obtained reversal of an adverse verdict
obtained in a negligent security case, Delgado v. Trax Bar & Grill,
after review by both the California Supreme Court and the Fifth District Court of Appeal. The firm was retained in 2005 to handle the appeal of this matter, which was then pending before the Supreme Court. The underlying matter arose out of an incident in which plaintiff alleged that the firm’s client failed to provide sufficient security at its restaurant in Turlock, California. Plaintiff contended that defendant’s lack of security resulted in his attack by 10-15 men, causing him serious bodily injury. At trial, the jury returned a verdict for plaintiff in the amount of $81,000; representing his economic damages only. The hearing before the Supreme Court was handled by the firm and held in April 2005. After briefing and hearing, the Court of Appeal was directed by the Supreme Court to view the evidence using a less stringent test for foreseeability.
On March 20, 2006, the Fifth District Court of Appeal agreed with the firm’s position, that despite this lesser test of foreseeability, the verdict could still not be allowed to stand. Accordingly, the Court ordered a new trial be held in the matter, nullifying the original verdict.
In the winter of 2006, Wendy L. Hillger will be speaking to owners of
multi-unit residential properties. Ms. Hillger will share her expertise
in construction law, such as what to know before hiring a contractor,
managing the remodeling construction project, and resolving issues that
may arise during the project. If you are interested in attending the
seminar, please contact Ms. Hillger
to be put on the mailing list.
Michael J. Gilroy and Shahab E. Fotouhi recently tried and successfully
defended a lengthy personal injury case in Sonoma County. The lawsuit
stemmed from a construction site accident wherein the plaintiff
allegedly tripped and fell over some wires and other construction
materials placed there by the Firm’s client, a general contractor.
Plaintiff was severely injured in the accident and was told he could
never work again in the construction field. At trial, plaintiff was
claiming a total of $3.4 million in economic damages, including past and
future medical specials and wage loss. He was also claiming millions in
non-economic damages (i.e., pain and suffering).
After a contentious three week trial on the issue of liability only, the
jury came back with a verdict on the negligence issue as follows: 85%
comparative negligence allocated to plaintiff; 10% allocated to
plaintiff’s employer; 5% allocated to the Firm’s client. Due to the
liability verdict, the case settled before the damages phase for an
amount far less than the Firm’s pre-trial offer of settlement.
FOTOUHI • EPPS • HILLGER • GILROY LLP is pleased to announce that
Daniel P. Iannitelli has been elevated to Partner at the firm.
The Northern California Office of Fotouhi Epps Hillger Gilroy LLP has moved as of January 3, 2006. The new address is 160 Pine Street, Suite 710, San Francisco, California 94111. The new telephone number is: 415.362.9300; the new facsimile number is: 415.358.5521.
Shahab E. Fotouhi represented the defendant in a case of much
interest to be decided by the California Supreme Court. Mr. Fotouhi’s
client, Trax Bar & Grill, was unable to prevent an orchestrated criminal
attack by a group of men upon Mr. Delgado. At issue is whether a tavern
owner, who voluntarily provides security guards to monitor the tavern’s
parking lot and control patron behavior, thereby assumes the duty to
protect patrons from assault by others in the parking lot. The oral
argument took place in Los Angeles on April 8, 2005. [Delgado v. Trax
Bar & Grill, Supreme Court case no. S117287].
Shahab E. Fotouhi and Daniel P. Iannitelli obtained a jury verdict for an account executive who was wrongly terminated
from her job and the victim of sexual harassment. Following a five week jury trial, the San Francisco jury awarded the
Firm’s client $1.2 million dollars in compensatory damages. Following a second phase of the trial, the jury awarded
plaintiff an additional $3.0 million in punitive damages for the defendants’ oppressive conduct.
Read Verdict Search Article.
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