MORA V. HOLLYWOOD BED & SPRING MFG. CO., ET AL.
Motion for Summary Judgment, January 17, 2007
Rory D. Leos

Rory Leos successfully argued and won a motion for summary judgment in this claim against Hollywood Bed & Spring Mfg. Co. The plaintiff was injured while operating a power press machine at Hollywood Bed’s manufacturing facility in Commerce, California. At the time of the accident, the plaintiff placed his left arm underneath the point of operation guard affixed to the press while attempting to perform an adjustment on the press. While doing so, and without turning the press off, the plaintiff accidentally pressed the actuation lever with his abdomen, causing the press to cycle and crush the plaintiff’s left arm. The plaintiff’s left arm was ultimately amputated above the elbow.

As a result of the accident, the plaintiff filed a Labor Code section 4558 claim against Hollywood Bed. Labor Code section 4558 is an exception to the exclusive remedy of worker’s compensation for individuals injured on the job. Under this code section, the plaintiff had the burden of proof to establish that the press did not have a point of operation guard affixed to it and that Hollywood Bed specifically authorized the removal or failure to install such a guard. Further, the plaintiff had to show that such a guard was required by the manufacturer of the press, that the manufacturer conveyed these requirements to Hollywood Bed, and that Hollywood Bed intentionally did not follow these requirements.

In defense, Mr. Leos presented undisputed evidence that, in fact, the press at issue was properly guarded, and that Hollywood Bed did not specifically authorize the removal of the guard or the failure to install such a guard. Further, Mr. Leos established that Hollywood Bed never received any instructions or requirements directly from the manufacturer of the press concerning point of operation guarding on the press at issue.

The court took Hollywood Bed’s argument under submission and within two weeks issued its ruling and granted Hollywood Bed’s motion for summary judgment based upon the undisputed evidence Mr. Leos presented at the summary judgment hearing.

Following Mr. Leos’s successful argument, the court revisited and reversed its prior denial of defendant Larry Harrow’s motion for summary judgment and granted Mr. Harrow’s motion. Mr. Harrow is the president of Hollywood Bed and plaintiff was suing Mr. Harrow under the same Labor Code section as Hollywood Bed.

Plaintiff appealed the trial court’s decision. In his appeal, plaintiff argued that there was evidence that his employer had been told by the press manufacturer that a point-of-operation guard was required for all punch press machines and that there was also evidence that a safety guard had been removed from the machine when it was first installed by Hollywood Bed in the 1980’s. Additionally, plaintiff alleged that since his employer admitted to knowledge about the dangers of using a punch press without a guard, and since the punch press did not have the types of safety equipment required to eliminate those risks, a jury could conclude that the employer specifically authorized the removal of the point-of-operation guard.

Affirming the trial court’s summary judgment ruling the Second Appellate District Court held in a published decision that a plaintiff seeking the benefits of the punch press exception under Labor Code section 4558 must establish evidence that the employer actually authorized the removal or non-installation of the guard. Simply alleging that the employer had knowledge of the danger and that it failed to remedy the condition is not enough to trigger liability.

On September 10, 2008 the California Supreme Court denied plaintiff’s petition for review and request for immediate stay.

W. JEFFREY ROBINS V. REGAL ENTERTAINMENT GROUP
Jury Trial, February 13, 2007
Christopher E. Faenza; Kelly M. Douglas

Christopher Faenza and Kelly Douglas obtained a defense verdict on behalf of Regal Entertainment Group in this wrongful death and survival action where plaintiff alleged claims of negligence, as well as violations of the Unruh Civil Rights Act, the California Disabled Persons Act, and the California Public Accommodations Law, premised on an alleged violation of the Americans with Disabilities Act ("ADA").

On the evening of March 9, 2004, the decedent, 83 year old William R. Robins, went to see a movie with his step-daughter at the Regal Cinemas in Tustin. Mr. Robins walked with the assistance of a four-point cane. He entered the theater without any difficulty by using the "up" escalator. After the movie, he left the theater by taking the "down" escalator. When Mr. Robins stepped on to the "down" escalator, he lost his balance and fell to the bottom of the escalator. Mr. Robins sustained a comminuted right humeral fracture from the fall. His medical course was complicated by a methicillin resistant staphylococcus aureus (MRSA) wound infection, deep venous thrombosis, and a chronic ileus. After several transfers between the hospital and the rehabilitation center, Mr. Robins passed away 103 days after the fall.

Decedent's son, W. Jeffrey Robins, argued that the absence of directional signage for the existing elevator on defendant's premises constituted a violation of the ADA. He also argued that the theater was negligent in failing to provide such signage, and was negligent in failing to adequately train its personnel to deal with disabled people. Furthermore, plaintiff claimed that Mr. Robins' death was caused by the fall, arguing that the medical complications following the fall exacerbated decedent's pre-existing condition ultimately causing his demise. Plaintiff claimed past medical expenses in the sum of $650,000 and sought enhanced damages, including treble damages and attorneys fees, based on the alleged ADA violation.

In defense, Mr. Faenza and Ms. Douglas contested liability by presenting expert testimony that the absence of directional signage did not constitute a violation of the ADA because it did not constitute a communications barrier that was structural in nature. Testimony from several theater employees was presented to dispute plaintiff's claims of negligent training. The cause of death was also disputed by the defense. Upon autopsy, the cause of death was attributed to severe occlusive coronary atherosclerosis due to atherosclerotic cardiovascular disease. The defense presented expert testimony that Mr. Robins' pre-existing medical condition, coupled with the autopsy results, showed that Mr. Robins died as a result of sudden cardiac failure which was unrelated to decedent's fall.

After deliberating for three hours, the jury returned a verdict in favor of defendant on the negligence and ADA-related causes of action. Because plaintiff rejected defendant's statutory offer to compromise, and sued under the Disabled Person's Act (which mandates that the prevailing party be awarded attorneys' fees), Yoka & Smith sought reimbursement of Regal's fees and costs in the amount of $250,666.89. Plaintiff opposed defendant's cost bill, arguing that he should not be liable for the fees or costs in his capacity as a successor in interest. Regal argued that plaintiff should not be permitted to escape liability simply due to his status as a successor in interest. Judge Gregory H. Lewis of the Orange County Superior Court agreed with Regal's position and ordered plaintiff to pay Regal the total amount of its defense fees and costs.

Plaintiff appealed the award of Regal's attorneys' fees and expert fees. Following significant briefing of the issues on appeal and oral argument, Division Three of the Fourth Appellate District affirmed the award of attorneys' fees and on appeal, totaling approximately $300,000, and further ordered that Regal be awarded its fees and costs on appeal. In its unpublished opinion, the Court confirmed that Civil Code section 1026 did not bar the imposition of costs against plaintiff in his capacity as a successor in interest. Further, the Court found that the statutory offer to compromise served upon plaintiff by Yoka & Smith was valid and enforceable.

View a PDF of the Appellate Opinion

KATHY FAULSTICH, et al. vs. SENTRY CONTROL SYSTEMS, INC., ET AL.
Jury Trial, June 8, 2007
Christopher E. Faenza, Esq.

Christopher E. Faenza, Esq. obtained a defense verdict for Sentry Control Systems, Inc. following a six day jury trial before the Honorable Lois Smaltz. Plaintiff, Kathy Faulstich, claimed she was injured when she attempted to walk under a vehicle-access barrier gate arm that was attached to parking revenue control equipment manufactured by defendant Skidata America, Inc., and maintained by defendant Sentry Control Systems, Inc.

Plaintiff, Kathy Faulstich claimed injuries to her back, neck, shoulder and knees, as well as cognitive dysfunction and severe emotional distress. Plaintiff’s son, Jacob Faulstich, asserted a cause of action for negligent infliction of emotional distress, which he claimed resulted from observing his mother being hit by the subject gate arm.

Plaintiffs’ complaint asserted causes of action for premises liability and products liability against defendants, Linquist & Craig Hotels and Resorts, Skidata America, Inc., and Sentry Control Systems, Inc. At the time of trial, only the products liability causes of action remained against defendants, Skidata America, Inc., and Sentry Control Systems, Inc.

As a result of Yoka & Smith’s successful motion in limine, plaintiffs’ only liability expert, Stephen C. Wexler of Wexco International, was precluded from testifying at trial because his opinions lacked foundation. Defendants were then postured to argue that plaintiffs lacked evidence to support a finding of liability, as plaintiffs had no expert to testify that the subject product was defective in its design, or did not perform as expected by consumers. Defendants also argued that it was not reasonably foreseeable that a pedestrian would walk under a vehicle- access only gate arm, and that plaintiff’s own negligence caused her injuries.

After 50 minutes of deliberating, the jury returned with a defense verdict. Prior to trial, Yoka & Smith served a statutory offer to compromise for $5,001 upon plaintiff, Kathy Faulstich. Because the offer was rejected by plaintiff, Sentry Control Systems was awarded its costs and expert fees, pursuant to Code of Civil Procedure section 998.

RAMIREZ v. COLICH & SONS, ET AL.
Jury Trial, September 24, 2007
Christopher E. Faenza; Andrew O. Smith

Christopher Faenza and Andrew Smith obtained a defense verdict on behalf of defendants, Colich & Sons and J.C. Equipment, in a case involving a motor vehicle accident resulting in an alleged skull fracture and moderate brain injury.

On November 28, 2005, plaintiff, Jose Ramirez, a 32 year-old laborer, was a passenger in a sports car operated by his wife, Martha Campos. They were northbound in the right lane of a three-lane road. Ramon Alvarez, a mechanic for Colich & Sons and J.C. Equipment, was driving a service truck northbound in the in the middle lane.

Plaintiffs contended that they were driving at a speed of 55 mph and that defendants' truck was going 3 mph faster when it drifted into their lane. Plaintiffs claimed that defendants' truck hit their vehicle when it drifted into their lane, causing plaintiffs' car to spin out of control, striking the guardrail and defendants' truck.

Plaintiff, Jose Ramirez, claimed he suffered a skull fracture and a moderate brain injury as a result of the incident. He claimed he incurred past medical expenses in the amount of $47,000, future medical expenses in the amount of $145,000, past loss of earnings in the amount of $34,000, as well as pain and suffering in the amount of $2.2 million.

Through their accident reconstructionist and an independent witness, Yoka & Smith argued that plaintiffs were traveling 70 mph at the time of the incident when they attempted to pass defendants' truck. Mr. Faenza and Mr. Smith showed that plaintiffs' car made an unsafe lane change into defendants' lane, establishing that plaintiffs cut the turn too sharply and hit defendants' truck. The defense also disputed that plaintiff suffered a skull fracture. The jury found the defendants' version of the accident more credible than plaintiffs' version and returned a defense verdict.

MICHAEL J. BRIGGS v. L.A. FITNESS INTERNATIONAL, LLC, ET AL.
Jury Trial, January 22, 2008
Christopher E. Faenza; Kelly M. Douglas

Christopher Faenza and Kelly Douglas obtained a defense verdict on behalf of L.A. Fitness International, LLC in this negligence/premises liability action involving a physical altercation between two sets of brothers – Michael and Jason Briggs, and Ricky and Juan Cavazos - on a basketball court at the L.A. Fitness facility located in Chino Hills.

The incident occurred on October 12, 2005 towards the tail end of a closely scored basketball game where the Cavazos brothers and the Briggs brothers were playing on opposing teams. The players had played basketball together on prior occasions without incident. On the date of the incident, Jason Briggs and Ricky Cavazos collided in an attempt to keep a rebounding ball in play. According to plaintiff, Jason Briggs was pushed up against the glass wall of the basketball court during the collision and was quickly surrounded by members of the opposing team. Witness testimony established that Jason Briggs put up his fists in an aggressive manner and an altercation ensued. Several L.A. Fitness employees entered the court within seconds and helped diffuse the situation. At trial, plaintiff claimed that L.A. Fitness staff members escorted the Cavazos brothers off the basketball court, while several members of the staff remained in the basketball court with plaintiff. The defense presented evidence that plaintiff and his brother were asked to leave the gym, but refused. Thereafter, the Cavazos brothers volunteered to leave.

By all accounts, there were no injuries during this phase of the altercation. Plaintiff admitted that there was no need to call the police at that time. In fact, plaintiff and his brother began to pick up where they left off with the basketball game. According to plaintiff, Juan Cavazos returned to the court a couple of minutes later and approached plaintiff with an outstretched hand, but plaintiff refused to shake hands. Thereafter, Ricky Cavazos came from behind and struck the side of plaintiff’s head. At trial, Ricky Cavazos admitted that he struck plaintiff, but testified that he did so in defense of his brother.

Plaintiff sustained a right orbital fracture as a result of the punch thrown by Ricky Cavazos, requiring multiple surgeries. Plaintiff sought damages in excess of $80,000 for past economic and non-economic damages, as well as $500,000 for future non-economic damages.

Ricky Cavazos, Juan Cavazos, and L.A. Fitness were named defendants in the case. Prior to trial, plaintiff limited his claims against Ricky and Juan Cavazos to negligence in a tactical move to defeat a pending declaratory relief action. Plaintiff argued that L.A. Fitness was liable for his damages because his security expert opined that the non-security personnel should have somehow anticipated the assault and physically restrained Ricky Cavazos to prevent his return to the basketball court. In turn, L.A. Fitness filed cross-actions against Michael and Jason Briggs and against Ricky and Juan Cavazos.

In defense, Mr. Faenza and Ms. Douglas contested liability by presenting expert testimony that the actions of the non-security personnel were reasonable under the circumstances, especially given the absence of prior similar incidents. Testimony from several employees and witnesses was presented to dispute plaintiff’s claims of negligence on the part of L.A. Fitness. In addition, plaintiff was effectively impeached with his own deposition testimony regarding the absence of prior similar incidents.

After a four-day trial, the jury deliberated for two hours and returned a verdict in favor of L.A. Fitness. The jury also determined that plaintiff’s damages totaled $80,346 and attributed 25% of fault to plaintiff. The jury assigned responsibility for plaintiff’s damages as follows: Ricky Cavazos - 60%; Juan Cavazos – 5%; and Jason Briggs – 10%.

Prior to trial, defendant, L.A. Fitness International, LLC’s served a statutory offer to compromise for a waiver of costs upon plaintiff. Because the offer was rejected by plaintiff, L.A. Fitness was awarded its costs and expert fees in the amount of $19,166.

Post-Trial –

Plaintiff moved for a new trial, claiming that the court erred in granting the defense’s motion limiting the amount of plaintiff’s medical damages to the amount paid versus the amount charged. Plaintiff’s motion was denied as to L.A. Fitness, but granted as to the Cavazos brothers. The Cavazos brothers have appealed the court’s order on the motion for new trial. In addition, plaintiff has filed an appeal as to the entire verdict. Both appeals are currently pending.

BARBARA DUNNE v. MAGGIANO'S INC., ET AL.
Jury Trial, June 2, 2008
Christopher E. Faenza, Esq.

Christopher E. Faenza, Esq. obtained a defense verdict on June 2, 2008 for Maggiano’s, Inc. Plaintiff, Barbara Dunne, claimed that she fractured her left wrist when she slipped and fell in the bar area as a result of a prior wine spill. There was no dispute that the restaurant employees were on notice of the spill. However, the employees were in the process of cleaning the spill at the time of plaintiff’s fall, in accordance with the restaurant’s policies and procedures. Because Mr. Faenza established that the employees were in the process of reasonably responding to the spill, the jury found that Maggiano’s was not liable for plaintiff’s damages.

During trial, plaintiff’s credibility was destroyed by her claim that she lost her job as a result of the incident. Mr. Faenza presented copious evidence to prove that plaintiff lost her job for other reasons, including evidence that she was a whistle-blower and that she had purchased an interior decorating franchise business before she was terminated.

Over the strong opposition of Yoka & Smith, plaintiff’s motion for new trial was granted. Maggiano’s, Inc. is currently considering an appeal.