Sacramento Personal Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

Mr. Santoro's Damages are Straightforward and Largely Undisputed
Defendants suggest that plaintiffs damages evidence will be highly complex and note that there were numerous doctors who treated plaintiff during the months he was hospitalized at Sacramento Medical Center, Mercy and the rehabilitation facilities. However, plaintiff’s damages evidence will be streamlined, straightforward and largely undisputed.

First, as noted above, plaintiff intends to call only one doctor from Sacramento Medical Center and one from Mercy, each of whom will explain the nature and extent of Mr. Santoro's head injury and the surgical procedures they performed. A third doctor, Dr. X from Children's Hospital, will explain the tendon release he performed on Mr. Santoro's legs. This is a very straightforward procedure. None on this testimony will be lengthy. While Mr. Santoro's injury was severe, none of the testimony about the injury or his treatment is particularly complex or difficult to understand. And, as noted, there is little dispute about the nature and extent of Mr. Santoro's injury - it is pretty clear cut. There is little disagreement among the parties' medical experts. The only other medical experts will be a neurologist, a neuropsychologist and a life care planner.

Thus, defendants' concern about complexity or an extensive number of witnesses regarding damages will not materialize in reality. A single trial will be efficient and take far less court and juror time than a two-phase trial.

Continue reading "Sacramento Man Seeks Damages From Police Dept. For Brain Injury, Part 9 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

Ends of Justice/Prejudice
Defendants speculate that a single trial may confuse the liability issues or result in prejudice in that a jury might look past liability. However, defendants cite no empirical evidence suggesting that trying liability and damages in a single trial would cause any prejudice to defendants. Certainly the fact that Mr. Santoro suffered a severe injury is no reason to bifurcate. Serious injury cases are tried in the courts of Sacramento County and other counties routinely without bifurcation and with no evidence of prejudice to defendants.

Jurors are routinely instructed they must find liability before considering damages and they appear to do so with little problem. Defendants offer speculation, but no evidence to the contrary. Further, as discussed above, the jury in this case would be aware of the seriousness of the injury in the liability phase in any event. The issue will be discussed in voir dire, as will many issues relating to Mr. Santoro' injury and damages, for there is only one opportunity to voir dire the jury before it is empaneled. See Bly-Magee v. Budget Rent-A-Car 24 Cal.App.4th 318, 332-344 (1994).

Further, the fact that Mr. Santoro suffered a fractured skull, a severe brain injury and was in a coma for weeks, etc. will be admissible on the amount of force used, to show that the amount of force used was unreasonable and excessive. Similarly, Mr. Santoro's injury must be discussed to some extent by medical professionals to explain to the jury why Mr. Santoro's memory loss is so extensive and, importantly, that his inability to recall any part of this incident is real and not feigned.

Continue reading "Severely Injured Sacramento Man Sues Police Officer, Part 8 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

B. Economy and Efficiency
The above discussion highlights the fact that far from promoting economy and efficiency, bifurcation would add significantly to the time and expense of litigating this case and would add significantly to the logistical difficulties of scheduling and re-scheduling witnesses, including experts, some of whom will have to testify twice.

In terms of economy, there is little question that a second trial will occur in this matter, particularly given the fact that comparative fault will apply. Given the number of procedures and training guidelines violated by Officer Doe and the extreme amount of force he applied to Mr. Santoro under very benign circumstances, it is most unlikely that a jury would not assign some percentage of fault to Officer Doe, if not a substantial percentage.

Not only would a second trial require several witnesses to testify twice, second opening statements, closing arguments, jury instructions and jury deliberations would be necessary. This would extend this trial well beyond the time necessary to conduct a single trial. This would not serve the goal of judicial economy at all. A single trial will not be much longer than a bifurcated liability phase, particularly since there is very little dispute among the experts about Mr. Santoro's damages. Indeed, the defense neuropsychologist has recently testified that Mr. Santoro has greater deficits and will need more care during his life than plaintiffs expert.

Continue reading "Saramento Beating Victim Suffers Brain Injury, Part 7 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

A. CONVENIENCE OF WITNESSES
As mentioned, plaintiff intends to call one of the neurosurgeons who treated him at Sacramento Medical Center and another who treated him at Mercy. Both of these surgeons performed operations on Mr. Santoro at different times and for different reasons. Both will testify about the extent and severity of the head injury Mr. Santoro sustained, as well as the fact that an extreme amount of force was required to cause this level of injury.

This evidence is a critical piece of plaintiff's proof in the liability phase. One of plaintiffs causes of action is for battery by Officer Doe. The crux of this claim is whether the force used by the officer was unreasonable or excessive under the circumstances. See, e.g., CACI Instruction No. 1305; Edson v. City of Aneheim, 63 Cal.App.4th 1269, 1272 [in action for battery against a police officer, plaintiff has burden of proving unreasonable force by the officer].

The nature and extent of the injury, as well as testimony about the amount of force that would be necessary to cause such an injury, is relevant and admissible on this issue.

Of course, both of these doctors will have additional testimony on the issue of damages. Bifurcation would therefore require that both testify twice, which would be highly inconvenient and unnecessarily expensive.

Continue reading "Beating Victim In Sacramento Files Claim Against Sacramento Police Dept., Part 6 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

THE COURT SHOULD NOT ORDER BIFURCATION ON ITS OWN MOTION
Although defendants motion is untimely as discussed above, the Court retains discretion to order bifurcation on its own motion at any time when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby . CCP §§ 598; see also, CCP § 1048(b).

In the present case, none of these ends would be served by conducting two separate trials, one on liability and one on damages, for several reasons to be discussed below. First, however, it should be noted that plaintiff has no intention of calling an extensive number of the physicians who treated him. Indeed, Plaintiff plans to call only one of the doctors who treated him at Sacramento Medical Center and only one who treated him at Mercy Hospital. Each will be relatively short - no more than one hour of direct testimony and probably less. Moreover, as discussed further below, each of these doctors will be testifying on the issue of liability in any event, and would have to come back to testify a second time if the case were bifurcated.

Continue reading "Sacramento Plaintiff Files Action For Brain Injuries, Part 5 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

DEFENDANTS' MOTION IS UNTIMELY
Code of Civil Procedure § 598 provides that a motion to bifurcate brought by a party must be noticed and set for hearing far enough in advance of the trial so that an order for bifurcation, if appropriate, may be obtained no later than the pretrial conference or, in other cases, no later than 30 days before the trial date. C.C.P. § 598;

Although the Court retains discretion to order bifurcation on its own motion, the notice and hearing deadline provided in CCP § 598 is no small matter. For example, in the present case, plaintiffs counsel have been preparing for trial and scheduling witnesses, including expert witnesses, for a single trial. Defendants never mentioned or hinted that they desired bifurcation until new counsel entered the case and this motion was filed. Notably, the motion was filed with the trial date imminent and with a hearing date for the motion on the trial date itself, June 6, 2008. This is well beyond the deadline for such motions specified in CCP § 598.

Equally significant is the fact that the Rules of Court provide that the issue of bifurcation, if desired or applicable, should be taken up months before the trial, at the Case Management Conference. (See California Rules of Court, Rule3.727(10).

In their Case Management Conference Statement filed for the Case Management Conference on June 20, 2007 nearly one year ago, Defendants mentioned nothing about seeking bifurcation, and specifically left blank the section of the CMC Statement that is to be checked where a party is contemplating bifurcation. Nor did defendants suggest they would seek bifurcation at either of the Case Management Conferences (June 20, 2007 and August 31, 2007). Clearly, the rules contemplate that such a motion be heard and ruled upon well before trial.

Continue reading "Injured Sacramento Man Files Claim Against Police Officer, Part 4 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

Mr. Santoro suffered a severe skull fracture, which caused substantial bleeding, bruising and swelling in his brain. He was in a coma, near death, for nearly a month. He had two operations in an attempt to relieve the bleeding, swelling and fluid in his brain. In the second operation it was necessary to remove parts of the temporal and frontal lobes of his brain. A total of ten centimeters of brain tissue had to be removed from Mr. Santoro' frontal lobes (referred to as a lobectomy, the equivalent of a lobotomy. While Mr. Santoro' life was saved, he has sustained permanent brain damage and will need life-long care. He was hospitalized for a total of over eight months and has incurred well over $1.5 million in medical bills. He has not returned to work and now lives with his parents and brothers, all of whom have assisted in his care.

At the very minimum this is a case of comparative fault and plaintiffs d images will clearly have to be litigated.

Earlier in the evening, Mr. Santoro and one of his friends, Paul Thomas, agreed to meet after work Downtown to watch the Rose Bowl football game which, that year, was the national championship game played in the evening between U.S.C. and Texas. A third friend, Danny Jones, joined them later in the evening.

Mr. Santoro and his friends had dinner and watched the game at an East Sac. restaurant then moved to a pub next door after dinner to watch the remainder of the game. Mr. Santoro had several beers over the course of several hours, but was not drunk and was not driving.

At approximately 11:30 p.m. Mr. Santoro and his friends were walking to Mr.Thomas' car intending to go home. As they walked along Market Street two men, unknown to Mr. Santoro and his friends, were walking behind them and began harassing them. Mr. Santoro and his friends crossed Market Street hoping to avoid these men but the men followed them across the street. By this time Mr.Thomas, who was walking faster, was several feet ahead.

The two men continued harassing Mr. Santoro and Mr. Hernandez and eventually started a light with them. Mr.Thomas returned to assist and saw Mr. Santoro on the ground with one of the assailants on top of Mr. Santoro. He pulled the man off of Mr. Santoro.

Officer Doe at this point drove to the scene and hit his siren as he pulled up. The fighting stopped and Mr. Santoro began jogging away.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

INTRODUCTION/SUMMARY OF FACTS cont.
Defendants' own police procedures expert has testified that it was improper for Officer Doe to fail to notify dispatch of what he had upon arrival. Officer Doe himself has testified that he was out of his car, in the presence of five unknown males, for about five seconds when one of the men (plaintiff James Santoro) turned and began to lope away. Officer Doe testified that within one second he started to chase Santoro without knowing who the aggressors were and knowing very little about any of the five involved. The crime Officer Doe was investigating was a simple misdemeanor P.C. § 415 (fighting in public).

Officer Doe ran right past the four other men, including the two who instigated the fight. In doing so, he violated proper police protocols and clear training guidelines.

Officer Doe ran about 100 feet toward Mr. Santoro. Witnesses will testify that Officer Doe yelled stop once or twice, and nothing else. Officer Doe claims he yelled numerous times. James Santoro, complying with Officer Doe' requests, stops and turns around. As he does so, Officer Doe hits Mr. Santoro in the chest with both hands, with great force. Mr. Santoro flies backward.

Officer Doe hit Mr. Santoro with such force that Mr. Santoro' body flew into the air. According to Officer Doe and an independent eye witness who was six feet away, Mr. Santoro' legs flew up in front of his body, which was now parallel to the ground, flying backward. Mr. Santoro was unable to break his fall in any way. His back hit the sidewalk and his head snapped back onto the pavement with great force, causing a loud smack which, according to the eye witness, sounded like a melon smashing onto the pavement. Mr. Santoro' head bounced up and smacked onto the pavement a second time due to the force with which he was hit.

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Continue reading "Sacramento Police Officer Responsible For Brain Injury To Local Man, Part 2 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

Plaintiff’s Opposition to Defendants’ Motion to Bifurcate Liability from Damages

INTRODUCTION/SUMMARY OF FACTS
The plaintiff, James Santoro, is a 28 year old life long resident of Sacramento and law abiding member of the community. Before this incident he had never been arrested or had any negative contact with law enforcement. His family has been in Sacramento for three generations. His father and mother were both born in Sacramento and come from families that have always been hard working, law abiding members of the Sacramento community.

At the time of the incident Mr. Santoro was working as a file clerk for a large law firm in downtown Sacramento. Mr. Santoro had been working there for approximately two years and was an exemplary employee, well liked and well respected by all members of the firm. Prior to working for his current firm worked as a file clerk for another well-respected large law firm in Sacramento.

Sacramento police officer John Doe joined the police department in 2002 and completed his POST training and his field training with SPD in 2003. His training included training in patrol techniques, crimes in progress and foot pursuits.

January 4, 2006 was the night of the national championship football game at the Rose Bowl between U.S.C. and Texas. Many people were in the East Sac. area of downtown Sacramento to watch the game at one of the many restaurants and bars in the area.

Continue reading "Sacramento Man Suffers Brain Injury At Hands Of Police, Part 1 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

H. Universal Fails to Negate Plaintiffs' Fraud/Conspiracy and Punitive Damages Claims
To satisfy its initial burden, Universal must either negate a necessary element of each of plaintiffs' causes of action or demonstrate that under no hypothesis is there a material issue of fact that requires the process of trial. [Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674.] Universal fails to show with competent evidence any lack of proof that Tina Gomez was exposed to Universal's asbestos-containing, or otherwise, defective product. Regardless, plaintiffs need not prove that Ms. Gomez was exposed to asbestos from Universal products to recover against Universal for injuries stemming from its participation in a conspiracy to suppress from Ms. Gomez, and others similarly situated, material information about asbestos-related health hazards. Hence, Universal may be liable to plaintiffs here from Ms. Gomez's exposure to any asbestos from any source as a result of the conspiracy in which Universal participated.

The elements of a civil conspiracy are an agreement, a wrongful act by any of the conspirators pursuant to the agreement, and damages. [Stone v. Regents of University of Cal. (1999) 77 Cal.App.4th 736, 748 fn. 9 (emphasis added).] The active concealment of facts by even a non-fiduciary (such as Universal here) is the equivalent of a false representation, i.e., actual fraud. [5 Witkin, Cal. Procedure (4th ed. 1997) Pleading § 678, p. 136 (emphasis added).] In a case directly on point, it was held that a viable fraud cause of action was stated against multiple defendants who were accused of having intentionally concealed the ingredients of a defective product. [Quirici v. Freeman (1950) 98 Cal.App.2d 194, 201; Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 964; Committee on Children's Television v. General Foods (1983) 35 Cal.3d 197, 218-219.]

Likewise, punitive damages may be based upon fraudulent conduct, and upon a defendant's knowing failure to warn of hazards. [Civ. Code § 3294; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 40091.]

Universal shows no lack of proof that it knowingly concealed asbestos-related hazards associated with its products. Indeed, none of the 26 purported facts in Universal's separate statement address, involve, or discuss plaintiffs' fraud, conspiracy-to-defraud and punitive damages claims.

Continue reading "Personal Injury Action Filed On Behalf of Roseville Woman, Part 14 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

G. Universal Fails to Negate Plaintiffs' Premises Liability Claims
Universal fails to show any lack of proof that it: (1) required the use of any asbestos-containing products at the West Facility; (2) managed the operative details of David Plaza's work such that the asbestos-containing dust on his person and clothes exposed Tina Gomez to asbestos; (3) negligently failed to warn or abate concealed hazards; or (4) negligently hired or managed other workers that negligently handled asbestos-containing materials.

Universal ignores that it owned and operated the West Facility when David Plaza performed brake work, which inevitably included the removal and installation of asbestos-containing brakes, at that store during 1981 through March 1982. As Universal's PMK and counsel readily admit, Universal controlled the operative details of the work at the West Facility when that store was company owned. Thus, triable factual issues exist as to whether Universal is liable for negligently: (1) exercising the control it retained of the work at the West Facility that eventually exposed Tina Gomez to asbestos; and (2) failing to warn of or abate concealed asbestos-related defects. [Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659; Grahn v. Tosco Corp. (1997) 58 Cal.App.4th 1373.]

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Continue reading "Wrongful Death Suit Due To Mesothelioma Filed Against Roseville Tire Company, Part 13 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

F. Universal Exercised Complete or Substantial Control Over the Franchisee
Courts focus on the right to control in determining whether a true agency relationship exists between a franchisor and franchisee. [Wickham v. Southland Corp. (1985) 168 Cal.App.3d 49, 59; Nichols v. Arthur Murray, Inc. (1967) 248 Cal.App.2d 610, 613.] If the franchise agreement gives the franchisor the right of complete or substantial control over the franchisee, an agency relationship exists. [I]t is the right to control the means and manner in which the result is achieved that is significant in determining whether a principal-agency relationship exists. [Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284, 1288 (emphasis in original).] The inquiry on this point is a factual one that rests on the extent to which the franchisor retained and exercised control of the operational details of the franchisee's business. [Id. at 1292-1296.]

Universal fails to show with any admissible evidence that the West Facility was a Universal franchise during 1982 and 1983. California case law is clear that an agency relationship does not exist between a franchisor and a franchisee unless the franchise agreement gives the franchisor the right of complete or substantial control over the franchisee. [Cislaw, supra, 4 Cal.App.4th 1284, 1288.] Universal fails to provide a copy of any franchise agreement for the West Facility. This is no small matter because the terms of the agreement determine whether the franchisee acted as an agent of the franchisor. [Id. at 1288, 1294-1295.] Based on the testimony of Linda Snowball, Richard Leevers and Edwin Ferguson, it is questionable whether a West Facility Franchise Agreement even exists.

Instead of presenting a franchise agreement for the West Facility, Universal instead relies on the inadmissible declarations of Richard Stein and David Ferguson, an exemplar of a franchise agreement for the Baldwin Facility and a copy of the West Facility Sublease. Such evidence is insufficient. Without a franchise agreement for the West Facility, this Court is in no position to determine whether: (1) the West Facility was, in fact, a Universal franchise; or (2) the terms of a franchise agreement for the West Facility, if it exists, are substantially the same as the Baldwin Facility Franchise Agreement.

The discovery issues presented here are common to most personal injury cases.)

Continue reading "Sacramento-Area Family Sues Tire Company for Causing Mesothelioma, Part 12 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

E. Universal Fails to Negate Decedent's Asbestos Exposure from 1981 to 1982
Universal in its motion makes no mention of Tina Gomez's alleged exposure to asbestos when David Plaza worked at the Universal-owned and operated West Facility from 1981 to March 1982. Universal admits that it owned and operated the West until March 1, 1982. The West Facility Sublease between Universal and Unity confirms this because the lease term began on March 1, 1982. Universal shows no lack of proof that, assuming it exposed Tina Gomez to asbestos from 1981 to March 1982, such exposure in reasonable medical probability was a substantial factor in increasing the risk of her developing the mesothelioma that killed her.
Universal submits no evidence to the contrary. First, Universal provides no franchise agreement for the West Facility. Second, Universal's former employees, Richard Leevers and Edwin Ferguson, and Custodian of Records, Linda Snowball, do not recall ever seeing such a franchise agreement. Third, paragraph seven of the Leevers Declaration is based on the hearsay statements of Jeff Gordon, rather than from Mr. Leevers' personal knowledge. .

Continue reading "Asbestos Work Products Leads To Mesothelioma For Sacramento-Area Couple, Part 11 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

C. Universal Fails to Meet Its Initial Burden in Moving for Summary Judgment
Universal in its moving papers was required to affirmatively establish not only that plaintiffs do not have a prima facie cause of action, but also that plaintiffs cannot reasonably expect to present one at trial. [Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.] Code of Civil Procedure section 437c(p)(2) precludes the burden of producing evidence of a triable factual issue from ever shifting to a plaintiff unless the moving defendant first makes the required showing that one or more elements of each cause of action cannot be established. [Scheiding, supra, 69 Cal.App.4th 64, 70.] Universal fails to establish that it ever propounded state-all-facts interrogatories or simply comprehensive discovery eliciting all of plaintiffs' evidence in support of all of the complaint's causes of action. It therefore follows that Universal does not show that plaintiffs served factually devoid responses to any such all-encompassing discovery. [Id.] This deficiency in itself requires that the motion be denied.[FN5]

D. Universal is Liable Under a Strict Products Liability Theory
There are triable factual issues as to whether Universal is liable to plaintiffs under a strict liability theory - either on a consumer expectation defect or a failure to warn theory. Universal mistakenly asserts that it is not subject to the complaint's strict liability cause of action because it did not supply any asbestos-containing product to the West Facility. However, Universal ignores the fact that its stores serviced and sold brakes.

California has adopted Restatement (Second) of Torts section 402A. [Barth v. B.F.Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 250.] It applies to any person engaged in the business of selling products for use or consumption which includes any manufacturer, wholesale or retail dealer or distributor. [Id. at com. f.]

Continue reading "Roseville Tire Company Exposed Couple To Asbestos, Part 10 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

B. Universal's Motion for Summary Adjudication is Fatally Flawed
Code of Civil Procedure section 437c(f)(1) only permits courts to summarily adjudicate that one or more causes of action has no merit, there is no defense to one or more causes of action, a claim for punitive damages has no merit, or one or more defendants either owed or did not owe a duty to the plaintiff. When summary adjudication is sought, both the moving party's notice of motion and separate statement must specify verbatim the specific cause of action, affirmative defense, claims for damages, or issues of duty sought to be adjudicated and the separate statement must tie each undisputed material fact to the particular claim, defense or issue sought to be adjudicated. [Cal. Rules of Court, rules 3.1350(b), (d) and (h).] There is a very important reason for these requirements: A party opposing a summary-adjudication motion is entitled to notice not only of the causes of action, claims or issues in dispute, but also of the alleged facts and evidence purportedly supporting summary adjudication of each such cause of action, claim or issue. [Gonzales v. Super. Ct. (1987) 189 Cal.App.3d 1542, 1546.] Universal in its Notice of Motion fails to state the specific cause(s) of action, affirmative defense(s), claim(s) for damages, or issue(s) of duty for which adjudication is sought.

(The discovery issues presented here are common to most personal injury cases.)

Continue reading "Sacramento-Area Woman Dies From Mesothelioma, Part 9 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

DISCUSSION

A. Moving Defendant's Burden of Proof
A party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.] This means the moving defendant must persuade the court that if the defendant's evidence is uncontroverted, no reasonable trier of fact could find for the plaintiff. [Id. at 851.] Only if the defendant makes that showing does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. [Id.]

A defendant has not met its burden unless it has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. [Id. at 854 (emphasis in original).] A moving defendant must make an affirmative showing that the plaintiff lacks the needed evidence; simply pointing to a claimed absence is not enough. [Id. at 854-855.] In ruling on the motion, the court must consider and view, in the light most favorable to the opposing party, all of the evidence and inferences reasonably drawn therefrom. [Id. at 844.] Declarations of the moving party are strictly construed, while declarations of the party opposing the motion are liberally construed. [Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832.]

Nor is it enough to merely assert that plaintiff failed to provide detailed information. The defendant must prove that plaintiffs failed to provide meaningful responses to comprehensive interrogatories designed to elicit all the evidence plaintiffs had to support their contention of liability. [Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1442; see also Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (burden did not shift where the interrogatories contained no questions aimed specifically at the presence or absence of the defendant at jobsites).] Also, the moving party must demonstrate ... that there is no evidence to support an element of the opponent's case ... If a party contends some particular issue of fact has no support in the record, it must set forth all the material evidence on the point and not merely the evidence favorable to it. [Rio Linda Unified School Dist. v. Super. Ct. (1997) 52 Cal.App.4th 732, 740-741.]

(The discovery issues presented here are common to most personal injury cases.)

Continue reading "Asbestos Exposure Leads To Mesothelioma For Roseville Couple, Part 8 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

E. Outstanding Discovery
Plaintiffs have not concluded the depositions of Universal's PMK and custodian of records. Universal's designated PMK, Edwin Ferguson, admitted that he has no knowledge about, among other topics, whether Universal had any agreements, provided manuals, imposed requirements on the purchase of asbestos-containing products and provided information about the handling and health hazards of asbestos to the West Facility. Indeed, other than briefly reviewing three documents, Mr. Ferguson did nothing to prepare for his deposition. This comes as no surprise since Mr. Ferguson first heard that he was being designated as Universal's PMK on the day of his deposition. Also, during the deposition of Universal's designated custodian of records, Linda Snowball, she testified that she has not searched for documents listed in Categories 5 through 17 of plaintiffs' custodian of records deposition notice. These include documents about Universal's control and supervision of the West Facility, as well as information about any asbestos-containing products used there. If the parties are still at an impasse after the meet-and-confer process, plaintiffs will move to compel.

On April 1, 6, 23 and 27, 2009, plaintiffs subpoenaed the deposition of Unity's owner, Jimmy Arnold. Plaintiffs' process server conducted several hours of surveillance on Mr. Arnold's business and gated residence, and have made several attempts to personally serve Mr. Arnold with the subpoena. In fact, Mr. Arnold has continuously evaded service by ignoring and refusing to allow the process server to enter his gated home. Plaintiffs will re-effectuate service on Mr. Arnold in the coming days so that his June 1, 2009, deposition will go forward.
All of the aforementioned pending discovery may well produce evidence confirming, among other things, that: (l) David Plaza worked at the West Facility from 1981 through 1983; (2) the West Facility was either a Universal-owned or franchisee-owned store during the relevant time period; (3) Universal controlled the day-to-day operations of the West Facility; (4) Universal supplied asbestos-containing products to the West Facility;

Continue reading "Roseville Tire And Rubber Company Sued For Asbestos Exposure, Part 7 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

4. Universal's Oversight of its Franchises
Universal's District Managers, Territory Sales Managers and Business Counselors personally visited franchisees on a regular basis to advise the franchisee on how to run a profitable business. In fact, it was important that the franchise tire center and Universal work together so they could make a profit so they can stay in business.

The District Managers and Territory Sales Managers worked with franchisees to ensure that the franchise had a balanced inventory of Universal products. The District Managers and Territory Sales Managers also told the franchisees of upcoming Universal promotions and which Universal products the franchisee needed to support those promotions. Universal's advertising department was in charge of all promotions for all Universal stores, including franchises. Jimmy Arnold of Unity always participated in Universal's sales promotions. Indeed, Universal never had a problem with a franchisee participating in Universal's promotions.

Universal's Business Counselors acted as business consultants to the franchisee. The Business Counselors oversaw whether the franchise operated like a Universal-owned store and followed Universal's standards. This includes control of the franchise employee's behavior and work practices. For example, if a franchise employee was the subject of customer complaints, Universal notified the dealer so in that way, [Universal] would try to control what he was doing, you know, the dealer. [Id.] Further, Business Counselors advised the franchisees to send their employees to Universal-certified classes or schools and receive National Institute for Automotive Service Excellence ( ASE ) certification. Universal-trained mechanics and representatives from brake manufacturers, such as Bendix and Raybestos, instructed franchise service personnel on how to remove and install brakes.

(The discovery issues presented here are common to most personal injury cases.)

Continue reading "Family Of Woman From Roseville Sues Tire Company, For Part 6 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

D. Universal Exercised Complete or Substantial Control Over its Franchises

Universal first started franchising its stores in 1972 to further merchandise its products and increase profits. Universal wanted its franchises to operate along the same lines as Universal's stores and Universal made sure that its customers cannot tell the difference between whether a particular Universal store was company- or franchisee-owned. Indeed, if a Universal franchisee went out of business, Universal then operated the store as a company-owned store. Universal placed certain mechanisms in its subleases, franchise agreements and Management Manual ( Universal Manual ) to ensure that its franchises operated and appeared the same as Universal-owned stores. Also, Universal employees regularly inspected and advised the franchises to ensure profitability and compliance with Universal's standards.

3. Universal's Management Manual
Universal required its franchisees to operate according to the Universal Manual. The Universal Manual outlined good business practices for the franchisee to follow to ensure profitability. Indeed, if a franchisee willfully or negligently deviated from the high quality service and maintenance standards set forth in the Universal Manual, Universal could terminate the franchise agreement. The Universal Manual required the franchisee to:
1. Follow Image Standards that included the maintenance and cleanliness of the facility;
2. Hire the most qualified and competent employees;
3. Train its employees on a daily on-going basis with, among other things, Universal's complete range of training materials ;
4. Purchase necessary training aids and to make training time available to employees ;

(The discovery issues presented in this personal injury case are common to most civil cases.)

Continue reading "Asbestos Exposure Leads To Suit Against Roseville Company, Part 5 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

B. Universal Exposed Tina Gomez to Asbestos

Decedent Tina Gomez met David Plaza during the summer of 1981. They soon began an 18-month relationship with Mr. Plaza living in Ms. Gomez's home and working as a mechanic at the West Facility.

Universal admits it owned and operated the West Facility until March 1, 1982. As Universal's counsel and its person most knowledgeable ( PMK ) candidly admit, if Universal owned and operated a tire and automotive center, such as the West Facility, Universal thus controlled the operative details of the work, conduct, and safety of its employees. After March 1, 1982, Universal subleased the West Facility to Unity. The West Facility had a retail space, store room area and a mechanical space with six repair bays. Mr. Plaza worked five days a week, eight hours a day, at the West Facility during the entire time he lived with Ms. Gomez. Mr. Plaza lived with Ms. Gomez at least five or six months before Universal subleased the West Facility in March 1982.

Universal manufactures and distributes various automotive products. Universal stores removed and installed asbestos-containing automobile brake linings as part of its brake service. The primary brands Universal purchased through suppliers included Wagner, Raybestos, and Bendix. Tina Gomez visited David Plaza at the West Facility at least twice a week. She saw him work on brakes and saw brake boxes on the floor of the West Facility near Mr. Plaza.
When they lived together, Tina Gomez saw David Plaza wear his work clothes every day. He had five uniforms, one for each work day, consisting of a pair of pants and a light-blue shirt that bore the Universal logo. After he came home from work, Mr. Plaza piled his filthy and dusty work clothes either in the bedroom or garage where they remained until Ms. Gomez washed them on Saturday. Ms. Gomez laundered Mr. Plaza's work clothes every week using the washer and dryer in her home. The washer and dryer were located within two feet of the bedroom. She always washed Mr. Plaza's work clothes as a separate load because they were really bad and grungy. The dust on the worn work clothes was dark and blackish. She shook the dust off of the work clothes in the garage.

Continue reading "Sacramento-Area Man Exposes Girlfriend To Work-Related Asbestos, Part 4 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiffs' enterprise/market-share liability causes of action allege that the nature of the asbestos-products industry and market were such that decedent Tina Gomez likely used or was exposed to each defendant's fungible products; defendants, including Universal, cooperated in the manufacture, design and labeling of a uniformly defective product and knowingly adhered to an industry-wide safety standard that failed to warn plaintiffs and others of the disease hazard posed by ordinary uses of their products; defendants delegated research, investigative and other safety functions to various trade associations and industry leaders who failed to adequately investigate the risks caused by the use of asbestos, and actively minimized and suppressed the publication of information showing that asbestos is hazardous; and defendants jointly created and controlled the risk that was the proximate cause of the mesothelioma that killed Ms. Gomez. Nowhere in Universal's separate statement does it negate, let alone address, that its asbestos-containing products were fungible ; that plaintiffs joined in this lawsuit the makers of a substantial percentage of those products; or that plaintiffs lack evidence in support of any essential element of the complaint's enterprise/market-share liability causes of action.

Nowhere in its separate statement does Universal reference any purported facts contained in the Declaration of Betty McElroy. Ms. McElroy searched Universal's employment records for information regarding David Plaza, but she did not search for Mr. Plaza's true first name, Lawrence. Although she had access to and can search for Mr. Plaza's employment records using his Social Security Number, she did not do so.

Continue reading "Lawsuit Filed After Roseville Couple Exposed To AsbestosPart 3 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

STATEMENT OF FACTS

A. The Complaint and Universal's Separate Statement
Plaintiffs' complaint filed August 24, 2007, alleges causes of action for personal injuries (survivorship), wrongful death, negligence, breach of implied warranty, strict liability ( consumer expectation and failure-to-warn defects), fraud and conspiracy, alternative-enterprise and concert-of-action liability, and premises liability against several defendants, including Universal. In their complaint, plaintiffs allege, among other things, that decedent Tina Gomez was exposed to asbestos taken from the premises of the West Facility on the person of David Plaza from 1981 through 1983. Universal is a defendant in 26 of the complaint's causes of action including, among others, fraud, conspiracy-to-defraud and concert-of-action.

Nowhere in Universal's moving papers does it show that it ever propounded any comprehensive discovery seeking all of plaintiffs' facts, witnesses and evidence in support of each cause of action. Nor does Universal in its motion show that plaintiffs served factually devoid responses to any such discovery. [Id.]

Plaintiffs' conspiracy-to-defraud and concert-of-action claims allege that: all products defendants (including Universal) acted as one another's agents; knew of the health hazards stemming from human exposure to asbestos as early as 1924; suppressed and misstated the information when there was a duty to disclose and warn of those hazards; and, as a result, Tina Gomez was exposed to the asbestos that caused the mesothelioma that killed her. Those causes of action allege liability upon proof of Ms. Gomez's exposure to asbestos from any source (and not necessarily from a Universal product). [Id.]

Continue reading "Roseville Family Sues For Wrongful Death, Part 2 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiffs' Memorandum of Points and Authorities in Support of Opposition to the Universal Tire & Rubber Company's Motion for Summary Judgment or, in the Alternative, Summary Adjudication

I. INTRODUCTION
The Universal Tire Company ( Universal ) in moving for summary judgment or, alternatively, summary adjudication ignores that it has the initial burden to prove that plaintiffs lack and cannot obtain evidence in support of at least one essential element of every cause of action. Universal fails to prove that it propounded comprehensive discovery seeking all information in support of plaintiffs' claims or that plaintiffs provided factually devoid responses. Also, while Universal asserts an absence of evidence of decedent Tina Gomez's exposure to asbestos from March 1982 to 1983, it ignores her alleged exposure to asbestos from Universal's products and negligence between 1981 and March 1982. Plaintiffs allege that Ms. Gomez was exposed to asbestos through live-in boyfriend David Plaza who brought home toxic asbestos dust from a Universal service center on West Avenue in Roseville, California ( West Facility ). Universal admits that it owned and operated the West Avenue facility until March 1982, its company-owned stores removed and installed asbestos-containing brakes and Universal controlled the operative details of the work at its company-owned stores. Mr. Plaza did brake work at the West Facility and he came home to Ms. Gomez in a Universal uniform laden with black dust. She shook the dust off his uniforms and washed them once a week. Universal fails to negate or show any lack of proof that Ms. Gomez's exposure to asbestos while Universal owned the West Facility between 1981 and March 1982 was a legal cause of the mesothelioma that killed her.Univeral's motion is fatally flawed in other respects. First, Universal ignores that it is liable under a strict products liability theory because its role as an installer and seller of asbestos-containing brakes places it in the vertical chain of distribution of a defective product. Second, Universal offers no admissible evidence to support its claim that, as a franchisor, it did not control the operative details of the work at the West Facility.

Continue reading "Sacramento-area Tire Company Sued For Wrongful Death, Part 1 of 14" »

As it prepares to celebrate the 50th anniversary of hosting the Winter Olympics, a tight-knit Sierra Nevada ski community is mourning another loss in an unusual string of tragedies this season.

A skier's deadly collision with a tree Thursday at California's Squaw Valley USA resort is the latest in the series that involves two other skiers killed in avalanches and nine deaths in all.

Off the slopes, a shuttle bus crash killed a resort employee in April, and three young women hoping to get seasonal jobs died of carbon monoxide poisoning in December while sleeping in a car just outside the resort.

Extreme skier Shane McConkey of Squaw Valley died in March while jumping off a cliff with a parachute in Italy. And Dave Pedersen, the resort's race services director, died of cancer in February.

"To say this has been a year of tragedy is an understatement," said Savannah Cowley, a resort spokeswoman. "It has been tragedies that have really, really struck our community. This is unprecedented as far as the grief this mountain has gone through."

Pete Bansen, Squaw Valley's fire chief, said he can't recall as many different kinds of fatalities in his 30 years in the resort community.

The avalanches – one killing ski patrol member Andrew Entin, 41, in March, and the other killing Randall Davis, 21, of Tahoe City, in December – were especially rare for Squaw Valley, he said. They were the first inbounds avalanche fatalities at the resort since 1963.

Continue reading "Sierra Ski Resorts Deal With Multiple Deaths And Tragedies" »

On April 9, a federal jury in Sacramento has ordered West Sacramento to pay damages to two sisters from Ghana who were handcuffed during a traffic stop.

Jurors declined to order punitive damages, The Sacramento Bee reported. They ordered $11,700 in compensatory damages to Karene Beecham, who was driving the car, and $21,700 to her sister, Karena Crankson. Because U.S. District Judge John A. Mendez, in an unusual move, found that the sisters' constitutional rights were violated, the jury only had to consider whether they were entitled to damages and how much.

The sisters, with their two young children in the car, were on a sightseeing trip when they were pulled over in 2006 for making a lane change without signaling. Officer Timothy Twardosz, who made the stop, sent a radio message suggesting that the sisters were high-risk, resulting in the arrival of three other officers.

Thethree other officers arrived at the scene in separate cars. With guns drawn, all four officers ordered the women out of their car. One officer had an assault rifle. Another had a pistol in one hand and a leashed police dog in the other. The two women were ordered to lift their shirts to show they were not armed, then handcuffed and placed in the back of separate police vehicles for about 30 minutes.

Beecham and Crankson were detained in the backs of police cars for about half an hour before Beecham was given a ticket and they were allowed to drive off.

Continue reading "Jury Awards Sacramento Women Money For Traffic Stop" »

On Thursday night a man sitting a bus stop in Sacramento was struck and killed by a 17-year-old motorcyclist. The cyclist will be charged with felony gross vehicular manslaughter, evading arrest and driving without a license, authorities said today.

The cyclist, whose name has not been released because he is a minor, remains in Mercy San Juan Hospital, where he is being treated for injuries suffered after leading the CHP on a high-speed chase and crashing into a Sacramento County sheriff's patrol car.

The incident began about 7:40 p.m., when a California Highway Patrol officer writing reports in the parking lot of a Target at Madison Avenue and College Oak Drive saw the motorcyclist speeding along Madison Avenue, CHP spokeswoman Liz Dutton said. The officer engaged in a pursuit heading west on Madison across the Highway 80 overpass. The cyclist was traveling an estimated 90 mph on a street with a 45 mph limit.

Near Hillsdale Boulevard, the motorcyclist signaled to the pursuing officer that he was going to stop but then sped up and ran a red light at the intersection with Jackson Street, Dutton said. There the cyclist collided with the sheriff's car.

Continue reading "Sacramento Bystander Struck And Killed By Motorcyclist" »

There was an interesting piece in the New York Times last week about the business of independent medical exams (IMEs) of injured workers who had filed claims against their employers. The story detailed the pressure often placed on the physicians conducting the exams to produce a report that is favorable to the insurance company, who also happens to be paying the physician's fee. Not everybody believes the system is broken, but the apparent conflict of interest does raise several red flags.

The obvious victim in this situation is the injured worker. The Times piece focused on New York state's workers' compensation system And that system's deficiencies is no different here in the Sacramento area, and throughout California.

The independent exams are designed to flush out workers who exaggerate injuries or get unnecessary care, and there is no question that some of that goes on. As a check on what a worker’s doctor determines, insurers are allowed to order an ostensibly neutral exam by a doctor they select and pay for. They do so regularly, with more than 100,000 exams conducted in New York state each year. The numbers are just as high in California.

Continue reading "NY Investigation Of Independent Medical Exams Affects California Injury Claims" »