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Anderson v. Fitness International, LLC (Second Appellate District)

Summary Judgment Affirmed

October 27, 2016

In a published opinion by the Second Appellate District, the Court affirmed summary judgment for Fitness International, LLC. (Fitness) in a premises liability case brought by an injured club member named Kirk Anderson.

The case involved a slip and fall injury sustained in a fitness club shower and Alice filed a summary judgment motion seeking to enforce the binding waiver and release contained in the membership agreement that plaintiff signed when he joined the club. Plaintiff sought to get past the written waiver upon a claim that Fitness was grossly negligent. Gross negligence is one of the few exceptions to a written waiver contained in fitness club membership agreements. In particular, Plaintiff alleged that he, and other members of the club, had fallen in the shower on soap residue prior to his latest fall and that the club had been warned about the dangerous condition of the shower several times prior to the injury-causing event. Plaintiff alleged Fitness's failure to remedy the slippery condition in the shower---even after being warned about the danger---went beyond ordinary negligence and amounted to gross negligence.

The trial court granted the summary judgment motion and entered judgment in favor of Fitness. In doing so, the trial court found that Fitness's conduct---even as alleged by plaintiff---did not rise to the level of gross negligence.

Plaintiff appealed and sought a determination by the appellate court that by failing to remedy a dangerous condition after receiving notice Fitness was grossly negligent and cannot escape liability based upon the written waiver. Alice Smith filed a brief on behalf of Fitness in which she argued that even if Plaintiff's claims were true, the conduct of Fitness amounted at most to general negligence. Thus, Anderson's claims were barred by the written waiver that he signed when he joined the club.

The Second Appellate District reviewed a history of cases involving determinations of gross negligence and affirmed the trial court's determination that Plaintiff's complaint did not allege facts supporting a finding of gross negligence against Fitness. In reaching its opinion the appellate court wrote that "the allegations in the first amended complaint fail to allege sufficient facts to support a theory of gross negligence. Although Anderson alleges the tile floor in the shower room was routinely covered in oily and soapy residue, he has not alleged facts to show its condition was an extreme departure from conditions one would expect in a health club shower facility. Nor can he allege the risk in using the shower facility was unknown to him, given his prior falls and his execution of the Release."

T. Bailey v. Copart, Inc., et al.

Defense Verdict

Stephen H. Smith and Sung Ho (Sean) Kim

October 27, 2016

Sung Ho (Sean) Kim obtained a defense verdict in favor of all of the firm's clients in a three-day jury trial in connection with a lawsuit brought by Ms. Bailey. This case results from the loss of a jewelry box, and its contents. Ms. Bailey forgot a jewelry box that allegedly contained approximately $25,000.00 worth of jewelry inside a 2000 Ford Taurus that she had donated for $500.00.

Defendants admitted that - when Plaintiff's Taurus was cleaned for auction - a jewelry box containing one or more items were found. An employee then contacted Plaintiff and offered to safekeep the items. When Plaintiff later went to retrieve her items, the jewelry box, and its contents, could not be found. As a result, Plaintiff sued defendants on theories of breach of contract, bailment, and conversion.

Defendants denied being responsible for Plaintiff's jewelry and denied that a binding contract was formed. Since the offer to safekeep Plaintiff's jewelry was gratuitously made, without any benefit to Defendants, Plaintiff's breach of contract claim lacked consideration, an essential point needed for finding a binding contract. In support of that defense, Copart showed that there is no company policy that requires the safekeeping of personal items found in a donated vehicle. The decision to safekeep Plaintiff's items was done as a "good deed" by the company's employees, whom Plaintiff had also sued for the loss.

Defendants disputed the number of items that Plaintiff now claimed were inside her jewelry box. Sean Kim demonstrated that - based on the circumstances - the jewelry box could not have contained the number of items alleged by Plaintiff. In addition, Sean argued that Plaintiff's claimed list of missing jewelry grew with time, so that Plaintiff's claimed amount of damages similarly increased. To that effect, Sean argued in closing that this case was nothing more than a lawsuit of opportunity.

After the close of Plaintiff's case-in-chief, the Court granted Defendants' request for a partial nonsuit on breach of contract (for lack of consideration) and conversion (for lack of evidence of wrongdoing or intent). Plaintiff later abandoned her claim for involuntary bailment, so a verdict form on voluntary bailment was submitted to the jury. After about 30 minutes of deliberation, the jury returned a defense verdict in favor of all of the firm's clients on the remaining claim of voluntary bailment.

Gallegos v. Tesoro Sierra Properties

Defense Verdict

Mary Childs

October 2016

Mary Childs successfully defended Titan Contractors in the Los Angeles County Superior Court in a trip and fall case. Titan Contractors installed a handicap ramp at the Tesoro gas station. While the concrete was curing, before Titan could paint the newly installed curb, plaintiff stepped off the unmarked curb fracturing his ankle. Plaintiff's medical specials were in $179,000 with future medical specials black boarded at trial in exceeded $240,000. The jury returned a defense verdict in favor of Titan Contractors finding that Titan Contractors was not negligent. The jury entered a verdict against Tesoro in the amount of $209,643.81 reduced by 50% for plaintiff's comparative negligence for a net verdict against Tesoro in the amount of $104,821.91.

Bryan Fernandez v. Schaub Construction, et al.

Summary judgment in favor of Defendants

Alice C. Smith; Lauren M. Pisieczko

July 27, 2016

Alice C. Smith obtained summary judgment in favor of Schaub Construction, Inc. and David Schaub as against plaintiff, which led to a dismissal of the entire lawsuit.

On May 29, 2012, Plaintiff Brayan Fernandez fell through a skylight lens at a home in Westlake Village, CA while painting inside the home. The owners of the home had contracted directly with Plaintiff's employer, Chuck's Custom Painting, to paint their home in or around April and May 2012. The original construction of the home was completed by David Schaub and/or Schaub Construction, Inc. in June 1988. The one story custom residence with loft area had a skylight opening with a lens cover that allowed light to penetrate to the first floor. The skylight was admittedly "open and obvious" to the homeowners. The homeowners did not did not contract with either David Schaub or Schaub Construction, Inc as the general contractor for this painting project.

As a result of that fall, Plaintiff filed suit for his personal injuries and asserted actions for negligence and premises liability. Also as a result of that fall, Plaintiff-in-intervention, Everest National Insurance Company sought reimbursement of certain worker's compensation benefits paid to Mr. Fernandez. As against David Schaub and/or Schaub Construction, Inc, Plaintiff and Plaintiff-in-Intervention, Everest National Insurance Company made claims for Professional Negligence, General Negligence as to Latent Defects, Products Liability, Negligence and Strict Products Liability.

Defendants/Defendants-in-intervention David Schaub and Schaub Construction, Inc. moved for summary judgment the grounds that the statute of limitations for a patent condition on premises bars plaintiff's action against David Schaub and/or Schaub Construction, Inc. for construction work completed nearly twenty-five years prior to the Plaintiff's injury. Defense counsel also argued that the completed and accepted doctrine bars plaintiff's action against David Schaub and/or Schaub Construction, Inc. where the owners of the property, inspected and accepted David Schaub and/or Schaub Construction, Inc.'s completed work in June 1988, took control of the property and used it as their primary residence. Defense counsel further argued that where David Schaub and/or Schaub Construction, Inc. was not the general contractor at the time of the incident, it did not owe any duty to plaintiff and cannot be liable for premises liability for property that it did not own or control at the time of the incident. Finally, defense counsel contended that Plaintiff-in-intervention's claims against David Schaub and/or Schaub Construction, Inc. fail where there is no liability to plaintiff.

The Court agreed with the defense and determined that the skylight hole and the dangers associated with it were open and obvious, and any person would be aware of the skylight and its dangers with a cursory inspection. Ultimately, the Court granted summary judgment for defendants as to plaintiff's claims, on the basis of the completed and accepted doctrine and statute of limitations. The court's entry of judgment dismissed plaintiff's lawsuit entirely. Following the Court's granting defendants' Motion for Summary Judgment, the parties reached an agreement, where in exchange of plaintiff's right to appeal on the summary judgment and a dismissal of Everest National Insurance Company's claims with prejudice, defendants would waive their costs and fees.

Peter Reed v. Paramount Construction Services, LLC

Defense Decision, Dismissal for Waiver of Costs

Alice C. Smith and Lauren M. Pisieczko

April 29, 2016

Alice Chen Smith obtained a favorable verdict on behalf of Paramount Construction Services, LLC and Michael Lewis Quinn after a five-day jury trial against the Ghozland Law Firm, which led to a dismissal of the entire action for a waiver of costs. On January 22, 2014, Plaintiff, Peter Reed, a bartender in his 30s, was riding his bicycle on westbound Santa Monica Boulevard, approaching the intersection with Kings Road, in West Hollywood, when a truck operated by Michael Quinn made a left turn in front of him. As a result, Plaintiff struck the right, rear of the truck bed and fell onto the roadway. Plaintiff sustained a fracture of his left arm's humerus.

Plaintiff sued Michael Lewis Quinn and his employer, Paramount Construction Services, LLC, the owner of the truck. Plaintiff alleged that Quinn was negligent in the operation of the truck and that Paramount Construction Services, LLC was vicariously liable for Quinn's actions. Defense counsel argued that since Quinn's truck was 83 percent through the turn when Plaintiff entered the intersection, pursuant to California Vehicle Code 21801(b), Plaintiff should have yielded to the vehicle.

Plaintiff ultimately underwent surgery to repair the fracture with a plate and screws. Plaintiff later underwent a second surgery to remove the plate and screws. Plaintiff claimed that he would require a third surgery on his arm. He also claimed that he suffered a loss of earnings as a result of his injury and treatment and that he will also suffer a future loss of earning capacity.

Defense counsel noted that Plaintiff 's initial surgery was paid by Medi-Cal and that Plaintiff waived the costs of that surgery prior to trial. Defense counsel also noted that the second surgery was performed on a medical lien with Plaintiff 's treating orthopedic surgeon, who also had an interest in the surgery center where the procedure was performed. Defense expert, Dr. Ronald S. Kvitne, treating physician for the L.A. Kings, testified that although the need for the two surgeries was reasonable, the cost of the second surgery and therapy was unreasonable. Defense counsel further argued that Plaintiff would not need a third surgery.

At closing argument, plaintiff asked for $112,103.15 in past medical expenses, $20,000 in past lost wages, $46,000 in future medical expenses, $200,000 in past pain and suffering, and $200,000 in future pain and suffering, for a total of over $578,103.15. The jury agreed with Paramount Construction, LLC's arguments and rendered a verdict after 2.5 hours of deliberation. The jury awarded plaintiff $111,000 but apportioned 50 percent liability to each defendant Michael Lewis Quinn and Plaintiff, Peter Reed. Thus, after apportionment, Plaintiff's recovery was $55,500. The jury was polled 12-0 as to comparative fault and causation. After trial, Plaintiff's counsel moved for a new trial or, in the alternative, for additur. Counsel also moved for attorney fees for C.C.P. 2033. The parties agreed to a mutual waiver of costs.

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