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Results 2004

LANE vs. RITE AID
THRIFTY PAYLESS, INC., dba RITE AID CORPORATION vs. WHITING-TURNER CONTRACTING COMPANY
Jury Trial January 5, 2004
Christopher E. Faenza

This is a case that was successfully tried by Christopher E. Faenza to a defense verdict on the cross-complaint before the Hon. Tracy T. Moreno in Dept "86" Los Angeles Superior Court, San Pedro. In the case, cross complainant, Thrifty Payless sought $80,000 in attorney's fees and costs based on an express contractual indemnity claim. Whiting-Turner had been contracted to remodel a property for Thrifty in Long Beach. The construction was completed in 1999. In 2001, a customer of Thrifty tripped and fell while exiting the store and Thrifty alleged that the fall was caused in part by the work of Whiting-Turner. Thrifty settled with the plaintiff in the underlying action prior to the trial on the cross-complaint, and sought reimbursement for the $20,000 paid to the plaintiff in addition to their attorney's fees and costs. After a three-day trial, Judge Moreno ruled that the fall of the plaintiff was not related to the construction by Whiting-Turner and that Thrifty take nothing by way of their cross-complaint. Whiting-Turner was awarded, and received costs as the prevailing party.

MANESS vs. ROMANO'S
Jury Trial May 27, 2004
Christopher Faenza

Christopher Faenza obtained a defense verdict in this matter involving a claimed injury after tripping and falling at a Romano's Macaroni Grill in Northridge, California. plaintiff alleged that she tripped over a mat that was dangerous and that, as a result, the restaurant was responsible for her injuries, including two knee surgeries as well as a shoulder surgery, all of which she attributed to the fall. At the end of the four day trial, plaintiff sought $200,000 from the jury. defendants successfully argued that the mat utilized at the restaurant was not dangerous. Further, defendants introduced evidence that approximately 1 million customers have been in the restaurant since it opened four years ago, and that the plaintiff, Ms. Maness, was the only person who had fallen. The jury found 11-1 that the defendants were neither negligent nor did they create a dangerous condition on the property.

TOLUCA LAKE PROPERTY OWNER'S ASSOCIATION vs. HABERMAN
Jury Trial September 4, 2004
David McCann

This matter was tried to a defense verdict on the cross-complaint by David McCann. When the defendant Haberman, a member of the Toluca Lake Property Owner's Association stopped paying her dues, the Property Owner's Association filed an action for breach of contract and unjust enrichment, seeking to obtain nearly $34,000 in unpaid dues, penalties and interest. In turn

In turn, Ms. Haberman filed a cross-complaint against the association and one of its members of the Board of Directors premised upon conversion, and as against a neighbor for assault. The cross-complaint against the association and Ms. Edwards set forth causes of action for conversion (which included a claim for punitive damages), negligence, breach of implied contract, violation of Business and Professions Code section 17200, and unjust enrichment. The claims against the neighbor were for assault and intentional infliction of emotional distress. Yoka & Smith represented the association and the board member on the cross-complaint.

The case was tried to a jury in Glendale beginning on August 24, 2004. The trial lasted one week and ultimately the jury found as follows:

1. Although the jury found a contract to have been existed between the association and Ms. Haberman for the payment of the dues, and although the jury found Ms. Haberman breached the contract, the jury found the association had failed to adequately prove any harm, and hence it awarded $0 to the association. (However, the association prevailed on its claim for unjust enrichment and obtained a verdict in the amount of the past dues owed.

2. With respect to the cross-complaint against the association and Ms. Edwards, the jury found:

a. The association and Ms. Edwards had converted the property and they were negligent, however, the jury unanimously that Ms. Haberman's claims were barred by the statute of limitations.

b. The jury found that no contract was formed between the association/Edwards and Haberman.

c. The court granted Yoka & Smith's motion for nonsuit on the 17200 claim.

d. The court entered a verdict in favor of the cross-defendants on Ms. Haberman's unjust enrichment claim.

3. The jury found there was no assault by the neighbor.

GRAY vs. AIR PRODUCTS
Jury Trial November 19, 2004
Stephen Smith

Stephen Smith tried this product liability/negligence matter to a defense verdict although a plaintiff's verdict in the amount of $10 was rendered against the co-defendants. Yoka & Smith represented a Netherlands company, Benelux-Apex, which sold a preheater system to Air Products and Chemicals to replace that company's existing system. The new system was composed of twelve cube-shaped units, weighing approximately 40,000 pounds each, to replace the existing six units weighing approximately 88,000 pounds each. The new units were shipped with four lifting brackets, or "lugs," on the top four corners of each unit and each was affixed with five sets of nuts and bolts. Air Products retained The Saxon Group to remove the old preheater units and install the new preheater units. In the course of the operation, Saxon, with the advice and assistance of Air Products, took lifting lugs, and only four sets of nuts and bolts each, from the new units and used two lugs to lift each of the ends of the old units. On the last lift, the nuts and bolts from the lugs stripped and a four by eight foot cribbing block was driven through the leg of one of the crane crew, Daniel Gray. Gray underwent four surgeries, would need two total knee replacements, and was rendered permanently disabled.

It was found after the accident that the nuts and bolts stripped because they were mismatched, the nuts being larger than the bolts. Saxon and Air Products alleged that the nuts and bolts were mismatched at the Benelux factory and that configuration constituted a product defect for which defendant Benelux was liable. Benelux, in turn, contended that the mismatch happened on-site and, even if the mismatch occurred at the factory, the lifting system was safe and appropriate for the new preheater units. Rather, Benelux contended, the accident occurred because Saxon and Air Products, in installing the nuts and bolts, failed to properly inspect the system in order to determine the mismatch.

After a four-week trial, the jury rendered a defense verdict in favor of Benelux and a verdict of $10 million as against Saxon and Air Products.

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