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Defense Verdict — March 6, 2013
Christopher Faenza and Peter Felchlin

Christopher Faenza and Peter Felchlin obtained a defense verdict in a three-week trial construction site/vehicular accident involving catastrophic injuries.

On October 27, 2010, plaintiff Thomas Gutzwiller, 52, a construction supervisor for Riverside Construction, was engaged in a major flood control repair program for the County Flood Control District and the Water District for the City of Moreno Valley. The traffic control plan for the project called for some encroachment into the eastbound lanes of Ironwood Avenue. Concrete K-rails had been put in place between the parcel of land and active traffic lanes. The K-rails blocked the outermost of two lanes on eastbound Ironwood. Gutzwiller, a co-worker and an inspector for the City of Moreno Valley, was taking measurements to mark the boundary lines for some concrete cutting within the K-rails. In order to mark the line for the cut, measurements had to be taken from survey marks that had been placed in the middle of Ironwood Avenue. The survey marks Gutzwiller was attempting to reach were in the middle of the left-hand turn pocket. In order to obtain access to the survey marks, Gutzwiller had to climb over the K-rail, cross the sole remaining eastbound lane of Ironwood, which remained open to traffic, and take the measurement from the middle of the left-hand turn pocket.

Before Gutzwiller could make his last measurement, Cesar Rosales pulled his tractor-trailer into the left-hand turn pocket. Rosales was stopped at a traffic signal in the left-hand turn pocket, waiting for the light to change, when Gutzwiller attempted to take the measurement. Gutzwiller positioned himself in front of or immediately adjacent to the rear wheels of Rosales' empty trailer. While Gutzwiller was crouched, taking the measurement, the light turned green for Rosales, who proceeded forward to execute his left-hand turn. The rear wheels of the trailer caught Gutzwiller's left foot, slamming him face first into the roadway, causing significant injuries, including facial fractures and brain damage.

Gutzwiller brought suit against Rosales and his employer Pipeline Carriers, Inc.

Plaintiff contended that Rosales was negligent because he failed to notice Gutzwiller. Plaintiff's trucking expert claimed that a truck driver had a duty, not only to look forward at an intersection while waiting at a red light, but to look back behind his cab and between the axles of his truck before to moving forward.

The defense contended that Gutzwiller knowingly entered active traffic lanes and intentionally placed himself directly in front of the rear wheels of a tractor-trailer with knowledge that the trailer would be rolling forward within seconds, yet Gutzwiller did nothing to warn Rosales of his presence in front of the wheels. Defendants disputed the testimony of plaintiff's trucking expert and argued that there was no evidence to support the contention that Rosales failed the alleged duty to notice Gutzwiller. Defense added that not a single published regulation, ordinance or law imposes such a duty on a driver — commercial or otherwise. Furthermore, defense contended that because most trucks have trailers built with "vans" to hold cargo, it would be impossible for a truck driver to look between the axles of his truck without looking through the van.

Gutzwiller suffered catastrophic injuries, including a closed head brain injury, severe orthopedic and neurological injuries, and was permanently disabled. His attorneys asked for an award of $50 million from the jury.


The jury found unanimously that Rosales was not negligent after less than one hour of deliberation and entered a verdict for the defense.


Summary judgment in favor of defendant 24 Hour Fitness, USA, INC. and dismissal against defendant FREEMOTION FITNESS, INC. — JUNE 7, 2013
Stephen H. Smith; Aaron G. Capps; Aaron S. Case

Stephen Smith, Aaron Capps and Aaron Case obtained judgment in favor of 24 Hour Fitness, USA, Inc., which led to a dismissal of the entire lawsuit.

Plaintiff was injured while working out on a FreeMotion Dual Cable Cross Machine at the 24 Hour Fitness club in Santee, California. Plaintiff alleged that 24 Hour Fitness was negligent in its maintenance of the machine and that FreeMotion was liable because of a claimed defect in the machine.

At the time of the incident, plaintiff was a member of 24 Hour Fitness. Included in plaintiff's membership agreement with 24 Hour Fitness was a release of liability and waiver provision. In its motion for summary judgment, 24 Hour Fitness argued that plaintiff's membership agreement provided a complete defense to plaintiff's action. Specifically, plaintiff waiver in his membership agreement expressly relieved 24 Hour Fitness of any duty it owed to him based upon the release and waiver provision in his membership agreement.

The court found that plaintiff expressly released 24 Hour Fitness, USA, Inc., from claims of negligence based on the release and waiver provision in his membership agreement and entered judgment in favor of 24 Hour Fitness.

In light of the court's entry of judgment and the pending award of costs in favor of 24 Hour Fitness as the prevailing party, plaintiff dismissed the remaining defendant, FreeMotion Fitness, which dismissed this lawsuit entirely.

Defense Verdict — June 11, 2013
Christopher E. Faenza and Lauren A. R. Lofton

Christopher E. Faenza and Lauren A. R. Lofton obtained a defense verdict on behalf of a client restaurant owner in a negligence action involving a third-party criminal assault against one plaintiff and settled the other plaintiff's case post-verdict for less than 1 percent of the demand to the jury for the other ($7,500 settlement/$1.3 million demand).

On May 29, 2009, plaintiffs attended defendant's restaurant to watch a Lakers Playoff Game. While seated in the tavern area of the restaurant, plaintiffs and four of their friends were joined by a male and female assailant who offered to buy everyone a round of drinks in exchange for letting them sit at the table. While the two parties dined together, the female assailant went to the restroom. Upon her return, she noticed one of the plaintiffs, Ms. Daniels, flirting or bantering with her male companion. The other plaintiff, Ms. Kinley, also took a sip of her male companion's drink. Curse words were exchanged between the parties as well as a racial epithet. At some point during the evening, Ms. Kinley threw or spilled her drink on (or in the direction of) the female assailant. The manager of the restaurant asked that the parties quiet down; otherwise, they would have to leave. The parties all left thereafter without incident.

Upon entering the parking lot, Ms. Kinley began to chastise the three male members in her group about not "defending her honor". While doing this, the female assailant attempted to attack plaintiff; however, the three males were able to hold her back. The female assailant made an end-run around them and punched Ms. Kinley repeated. She was stabbed once in the process. Ms. Daniels came to Ms. Kinley's rescue and was successful in getting the female assailant to flee. Ms. Daniels, however, chased the female assailant to her car and began punching her through the car window. It was at that time that Ms. Daniels was stabbed. Emergency services were called and each plaintiff was treated at the hospital for their injuries.

During trial, the plaintiffs claimed that the restaurant should have done something to prevent the third-party criminal attack. They proffered evidence that the restaurant's one person responsible for security had left before the altercation and was not present to stop the attack. Both plaintiffs claimed significant general damages, medical expenses, as well as a loss of income. Ms. Kinley complained of significant emotional distress, PTSD, as a result of the injuries sustained and asserted that such would affect her ability to hold gainful employment in the future. Total damages sought were approximately $1.3 million for Ms. Kinley and $300,000 for Ms. Daniels.

The jury deliberated for over three days and returned a defense verdict for Ms. Daniels, based on the fact that she caused her own injury. The jury returned a verdict in favor of Ms. Kinley in the amount of $100,000. It also found comparative fault, assigning 55 percent of liability to the female assailant, 22 percent liability to Ms. Kinley, 17 percent liability to Ms. Daniels, and only 6 percent liability to the restaurant. Based on comparative fault and Proposition 51, the restaurant was responsible for approximately $50,000 of the jury award.

Following the verdict, defendant moved for a mistrial/new trial based on an error in instruction of the jury. The court was prepared to grant the request for a new trial; however, to avoid future litigation and costs to the courts and all parties, the court suggested that the parties attempt to resolve this matter informally.

Based on the significant cost bill facing Ms. Daniels, which included fees incurred by defendant's seven designated experts, and notwithstanding the jury award to Ms. Kinley, the parties agreed to forego future litigation and all claims and costs in exchange for a payment of $7,500 to plaintiffs and their attorneys.

Defense Verdict — June 14, 2013

Peter Felchlin, in a three-week jury trial, obtained a defense verdict for the State of California, Department of Transportation.

On February 7, 2010, plaintiffs John Wesley Patrick and Joseph Matyasik were southbound on Interstate 15 near the Jurupa Street exit when a 55-pound steel plate crashed into the roof of their Ford Explorer, shattering the windshield. The plate entered the passenger compartment, struck both plaintiffs, and eventually came to rest on the floor in front of the passenger seat. The metal plate was engraved "Caltrans-Streetlighting." The accident occurred adjacent to a freeway widening construction project. Plaintiff Matyasik sustained facial lacerations, a severe bruise to his left knee and soft tissue injuries. Plaintiff Patrick sustained bruising to his right chest wall and right knee. Both plaintiffs claimed the need for future knee surgery.

Plaintiffs sought to establish liability on the part of Caltrans based on the fact that the plate had Caltrans name on it and that the accident occurred adjacent to a Caltrans construction site. They contended that the circumstantial evidence was such that it was more likely than not that the plate fell off a Caltrans vehicle.

Peter Felchlin defended the case on behalf of Caltrans. The day of the accident was Super Bowl Sunday. The accident occurred at approximately 3:30 p.m. Peter Felchlin was able to show the jury that a small pothole repair crew had worked earlier that day, but computer records showed they had finished their shift at 2:00 p.m. Further, computer records showed that work on the construction site proper was not being conducted at the time of the incident, and that construction crews did not return to the construction site until approximately 10:00 p.m., some 6 1/2 hours after the subject accident. The investigating California Highway Patrol officer traveled up and down the roadway following the incident to see if he could locate any Caltrans employees. He was completely unsuccessful in doing so.

Mr. Felchlin successfully argued to the jury that the metal plate could have come from anywhere. Such plates can be found along highways throughout Southern California. Moreover, the plates serve as covers to junction boxes containing copper wiring, and are often removed by thieves to obtain access to the copper wiring. This particular plate had been modified by the removal of reinforcing steel rebar and electrical ground lugs, making it unusable on public highways. The jury agreed with Caltrans argument and rendered a 9-3 defense verdict after 3 1/2 hours of deliberation.

Motion for Summary Judgment — December 18, 2013
Stephen H. Smith, Peter W. Felchlin, and Lauren A. R. Lofton

Stephen H. Smith, Peter W. Felchlin and Lauren A. R. Lofton obtained judgment on behalf of three clients, a business landowner and two former property owners, in which the plaintiff alleged causes of action for negligence, trespass, nuisance and conversion against the clients, and inverse condemnation against several public agencies, for damage to plaintiff's storage facility.

In December 2010, a significant rainstorm occurred in Southern California, particularly near the border of San Bernardino and Riverside counties. The inundation of water resulted in the overflow of a nearby uphill basin, which propelled water, mud, rocks and debris downhill from the basin, through the city, over the property of the business landowner and its adjoining neighbors, and ultimately into plaintiff's storage facility. Plaintiff's storage facility was situated at the bottom of the hill, in front of a flood control channel. Plaintiff claims to have suffered damages exceeding $1 million.

Plaintiff initially alleged that the clients altered their property so as to increase the flow of water, mud, rocks and debris into plaintiff's storage facility during the storm. This was disproven during discovery, however. Plaintiff then adopted the position that because the clients failed to protect or otherwise actively stop the flow of water, mud, rocks and debris onto plaintiff's property, i.e., through putting up sand bags, the clients were liable under Keys v. Romley (1966) 64 Cal.2d 396, the latter of which requires reasonableness in conduct when discharging water on the property of a lower landowner.

The clients sought summary judgment on the grounds that they did not owe a duty to plaintiff to protect against unforeseeable damage as well as the fact that it was undisputed that they did nothing to cause water, mud, rocks and debris from entering plaintiff's property. It was also argued that Keys' reasonableness of conduct analysis did not apply where the clients took no action to prevent water, mud, rocks and debris from entering plaintiff's property. Finally, the former clients argued that they could not be liable to plaintiff where they had no ownership interest in the property at the time of the incident.

In opposition, plaintiff argued that Keys required reasonable conduct and that it was an issue of fact for the jury to determine whether the client's inaction was reasonable. Plaintiff further argued that a property owner could not insulate itself from liability for structures or alterations to property performed by a prior owner. In essence, plaintiff argued strict liability for any current property owner, based on the conduct of the original builder of the property and structures thereon, or any prior owner making improvements to property.

Following extensive oral argument, the court granted summary judgment on numerous grounds: (1) the clients did not breach any duty since they made no alterations to their property and did not reasonably foresee plaintiff's damages from the December 2010 rainstorm; (2) the clients did not intentionally, negligently or recklessly enter plaintiff's property or interfere with plaintiff's use and enjoyment since mud, debris and rock did not originate from the clients; (3) the clients did not dispose plaintiff of personal property as there was no evidence that the alleged water had any substantial factor in causing plaintiff's damage; (4) the cause of plaintiff's damage was related to structural failures on plaintiff's property; and (5) the former property owners could not be liable to plaintiff where they did not own the property at the time of the incident.

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