Demurrer Sustained without Leave to Amend for Firm's Client in Negligent Security Case
In 2010, the Contra Costa County Superior Court ended a case in the client's favor at the initial pleadings stage. The client was a bowling alley which included an interior bar. Two bar patrons left the bar and got into a verbal and physical altercation with some bowlers. The bowling alley's employees called "911" and the offenders were ejected. The offenders initially drove away in a truck, but returned a few minutes later. The offenders intentionally struck and ran over plaintiff, an on-duty security guard for the parking lot. Plaintiff sued the bowling alley client, alleging that the lack of internal security in the bowling alley “emboldened” the felonious actions, and further asserted that the bowling alley employees made no attempt to disrupt the offender’s actions in the parking lot. Plaintiff also sued the offenders for civil damages. The plaintiff had allegedly incurred over $225,000 in past medical bills and substantial time off from work given his multiple surgeries.
Wendy L. Hillger, on behalf of the firm’s client, argued that plaintiff’s Complaint should be dismissed for the business did not have a duty of care to control third party criminals. It was further argued that plaintiff's claim was barred under the "firefighter's" rule which holds that police, fireman and paramedics voluntarily assume the risk of injury as inherent to his/her occupation. The Court agreed with Ms. Hillger, and granted the Demurrer without leave to Amend. Before any depositions were taken, the firm’s client received a Judgment and a cost award against plaintiff.
Defense Verdict on View Restoration Claim Under Santa Barbara City View Ordinance
Plaintiffs sued the firm’s clients in the Santa Barbara County Superior Court demanding they cut over four feet off their hedge in order to restore plaintiffs’ view of the Pacific Ocean and Channel Islands under the Santa Barbara City View Ordinance. In addition, plaintiffs lawsuit included claims for Nuisance, Assault and Intentional Infliction of Emotional Distress. Darren W. Epps, on behalf of the firm’s clients, successfully negotiated a dismissal of all claims, except the City View Ordinance claim, prior to trial.
At trial, Mr. Epps presented evidence that substantially reducing the height of the hedge, as requested by plaintiffs, would negatively impact the clients’ privacy. Mr. Epps further argued that plaintiffs’ claim was barred under the doctrine of laches as a result of plaintiffs’ four year delay in bringing the view restoration claim. After a 3 day bench trial, the court ruled from the bench in favor of the firm’s clients and against plaintiffs. In its 17-page Decision, the court “expressly rejected” plaintiffs’ requested hedge height reduction and found Mr. Epps’ laches argument persuasive and valid.
Daniel Dean Receives 2009 Award of Merit from the Bar Association of San Francisco
On December 17, 2009, Daniel P. Dean received a 2009 Award of Merit from the Bar Association of San Francisco at its annual luncheon. The award was given to Dan in recognition of his outstanding contributions to the association and legal community.
Firm Prevails on Appeal in Wrongful Death Case
In June, 2009, the California Second District of Appeals affirmed a Los Angeles Superior Court’s ruling on a case involving a fight at a sports bar. By way of background, plaintiffs had brought a wrongful death claim against the client in the lower court based upon premises liability including allegations of lack of security and failure to protect its patrons. After some lengthy discovery, Michael J. Gilroy, on behalf of the client, filed a motion for summary judgment in the same court successfully arguing that the events leading up to the patron’s death had occurred after hours in the sports bar parking lot and that 911 emergency personnel had been timely contacted. Plaintiffs appealed. However, judgment was affirmed in favor of the firm’s client. The matter had been pending for some time with oral argument taking place in February of 2009. The firm’s client was also awarded costs and fees as part of the appellate court’s ruling.
MSJ Granted in Favor of Firm's Client in Oregon Motorcycle Accident Case
In May of 2009, the Jackson County Circuit Court in Oregon, ruled in favor of the firm’s property owner client in a personal injury case involving alleged negligence on the part of the property owner. Specifically, with regard to the underlying facts, plaintiff was riding his motorcycle up a private road in a rural part of Jackson County when he encountered a marked cable that had been stretched across the road acting as a gated entrance to the client’s property. Michael J. Gilroy, on behalf of the firm’s client, argued that the cable was readily observable and, more importantly, that the plaintiff had not been looking forward in the direction of the cable at the time of the impact. The plaintiff had allegedly incurred over $700,000 in past medical bills and was seeking $8.2 million in damages. After careful consideration, the Jackson County Circuit Court agreed with the firm’s position and granted the motion for summary judgment in favor of the property owner including an award of its costs and fees. Judgment was entered in June 2009. The matter is now pending appeal.
Andrew Grade Joins Firm's Northwest Office
The Firm is pleased to announce the addition of Andrew Grade to our Northwest Office. Mr. Grade’s practice currently emphasizes premises liability, personal injury, complex litigation, construction defect and insurance coverage. He serves clients in Oregon, Washington, California and New York.
Wendy Hillger Prevails on Summary Judgment in Negligence Claim
In March 2009, Wendy L. Hillger secured Summary Judgment on behalf of a property owner in a personal injury case. Plaintiff was a handyman who fell from the roof of a greenhouse and sustained serious injuries requiring multiple surgeries. Ms. Hillger's client had leased the greenhouse to a third party, but his office was also located on the 3 acre lot. In addition to the standard duty of care arguments, plaintiff also asserted that the Firm's client had retained control of greenhouse by allowing certain property improvements to be made, and by having local police drive by the property. Plaintiff also argued that there was a "joint venture" or other employment relationship between the parties, and lastly, that the client had a duty to warn of deficient construction at the greenhouse. The Santa Cruz County Superior Court agreed that the written lease provisions made all the maintenance and upgrade obligations the obligation of the greenhouse lessee. It was further held that plaintiff's attempts to show that the client retained control over the premises did not rise to the level of triable issues of fact, and granted judgment in favor of the Firm's client.
Michael Gilroy Prevails in Oregon Construction Case
In December 2008, a Motion for Summary Judgment was successfully brought and argued by attorney Michael J. Gilroy in a construction case venued in Oregon. By way of background, Mr. Gilroy's client, a glass contractor, had been sued in a prior separate action by a condominium owner for construction defects including extensive water leaks. The glass contractor had settled out in that case but there had been no provision made by the prior law firm handling the matter for any protection from future lawsuits by way of a hold harmless agreement.
Subsequently, a second lawsuit was filed by the condominium owner naming the general contractor and others seeking millions of dollars in damages. The general contractor sued the glass contractor looking to it as one of the primary players. This lawsuit against the glass contractor was based on similar allegations that were contained in the prior suit arising out of the same work. The general contractor argued that the settlement by the glass contractor in the prior suit was irrelevant and of no consequence since their potential common liability to the plaintiff condominium owner accrued at a different time period than that contemplated in the earlier settlement. However, the court found that due to the inequities involved, the glass contractor should not be put in a position of "paying twice" and summary judgment was granted.
Michael Gilroy Prevails on Three Separate But Related Stabbing Incidents
In the spring of 2008, attorney Michael J. Gilroy brought and prevailed on a Motion for Summary Judgment in a case arising from a multiple stabbing incident in a bowling alley/sports bar parking lot wherein one individual died and at least nine people were stabbed and/or injured as a result of the knife fight. Three separate plaintiffs filed lawsuits against Mr. Gilroy's client, the bowling alley/sports bar on a premises liability basis including failure to protect its patrons. The first suit, involving a plaintiff that was stabbed in the neck, was dismissed as a result of the Mr. Gilroy's client prevailing on a Motion for Summary Judgment as to that particular plaintiff where the court found there was no duty owed by his client. A second lawsuit was filed on behalf of an individual that had been stabbed to death. After several hearings in the trial court, the judge granted Mr. Gilroy's Motion for Summary Judgment in favor of the bowling alley in that lawsuit as well. An appeal was filed in that action and argued in February of 2009 and an opinion in the appellate court is currently pending. Finally, a third lawsuit was filed by a plaintiff who was also stabbed but with much more minor injuries involved. After observing what occurred in the first two lawsuits, the third plaintiff dismissed its lawsuit outright, and with prejudice, after being advised that a motion for summary judgment was to be filed in their action as well.
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 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 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 attorneys 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 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.
Postscript: The Court of Appeals affirmed the judgment.
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 client, a general contractor, failed to use due care when he performed a pre-purchase property inspection. The asserted damages against the client were in excess of $2.2 million. The motion was based upon the statute of limitations. Ms. Hillger 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 Ms. Hillger'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.
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 Mr. Epps'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 Mr. Epps'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 Mr. Epps'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.
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 defense lawyers 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 monies the client expended to defend a serious personal injury and property damage case.
At issue was the contested existence of an "Additional Insured" endorsement. The 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 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 and Wendy L. Hillger prevailed on a negligent security case when the Court agreed that their 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 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 client's Motion for Summary Judgment.
In the summer of 2006, Darren W. Epps obtained a voluntary dismissal on behalf of a 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 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 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 client the
entire lease value, past and future, including attorneys' fees and
costs, and pre-judgment interest.
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 their 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 defense 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 his client and the excess carrier. The case was venued in
San Francisco Superior Court. The 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 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 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 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 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 defense 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. Mr. Fotouhi 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 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 Mr. Fotouhi 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 client'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.
Michael J. Gilroy and Shahab E. Fotouhi 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 their 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 Mssrs. Gilroy and Fotouhi's client. Due to the
liability verdict, the case settled before the damages phase for an
amount far less than the pre-trial offer of settlement.
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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