Third District Court of Appeal Affirms Jim’s 2015 Judgment Against Plaintiff For $136,062 (Ziert v. Young’s Lockford Payless Market, Inc.)

James Miller headshot On January 30, 2019, the Third District Court of Appeal affirmed a jury trial verdict and the award of expert fees in Jim Miller’s client’s favor in an unpublished decision. Jim’s client was also awarded the costs of appeal.

The appeal arises from a ten day jury trial that was completed in May, 2015. Jim Miller was also the trial attorney for the defendant. For a summary of the trial, please review the May 2015 post of Ziert v. Young’s Lockeford Payless Market, Inc.

At that time of the trial, the jury awarded plaintiff Ziert his co-payments only and did not award any other medical expenses, wage loss or general damages. The jury then found the plaintiff 75 percent comparatively at fault which resulted in a verdict of $720 in favor plaintiff and against Jim’s client. The verdict as to intervener was $0 and therefore, a judgment in favor of Jim’s client against intervener was entered.

Early in the litigation, Jim had served 998 Offers on both the plaintiff and intervener and those offers were in excess of the jury verdicts. Accordingly, the trial judge awarded Jim’s client its expert fees. The total judgment awarded to Jim’s client against the plaintiff and intervener joint and severally was $136,062.70.

Initially, both the plaintiff and intervener filed appeals arguing that there were facts insufficient to support the jury’s verdicts and that the trial court should not have awarded costs due to an improper 998 Offer. While the appeal was pending, the intervener and Jim’s client reached a confidential settlement. Therefore, the intervener dismissed it’s appeal. However, plaintiff’s appeal went forward.

The Court of Appeal issued its unpublished decision first noting that plaintiff’s attorney failed to present a proper record on appeal to allow it to address the issues argued in plaintiff’s appeal. The Court of Appeal then delved further noting that the record on appeal which was presented by plaintiff was adequate to show that there was sufficient evidence to support the jury verdict.

As for the awarding of costs, the Court of Appeal again affirmed the trial Court’s decision. The 998 that was offered to plaintiff was by Young’s Market and two other defendants, Louis and Harry Young. Louis and Harry had not yet been dismissed from the lawsuit at the time of the offer but ultimately were before the matter went to trial. Additionally, the 998 Offer also included the phrase that acceptance of the offer will also constitute satisfaction and settlement of all existing liens.

Plaintiff argued that the 998 was invalid because the offer included the individual defendants, Louis and Harry. The Court of Appeal ruled that it can be determined that the 998 Offer exceeds the judgment because there is no pending or anticipated action that might yield a judgment against the individual defendants whom plaintiff dismissed from the lawsuit. The Court of Appeal went on to offer that although the dismissal was without prejudice, there was no reason to anticipate renewed litigation, because the individuals and their market were sued as agents of each other, clearly united in interest and sued on a theory of joint and several liability.

Plaintiff’s second reason for invalidity of the settlement offer is that the offer required that all liens existing in May 2012 be satisfied from the offer. Plaintiff argued “there is no way to know what if any potential liens may arise, so the offer is ambiguous and not capable of being valued. The lien from the VA was itself in excess of $400,000 and impossible to satisfy from the offered amount.”

However, the Court of Appeal found that the offer was not ambiguous; it said nothing about “potential liens” but rather specified “existing liens.” Plaintiff failed to show the $400,000 lien was attributable to the subject accident. The Court further found that an offer designating that plaintiff is responsible for all medical liens is valid and comports with Section 998 is nothing more than a reminder of the plaintiff’s obligation to pay the medical liens. Accordingly, the Court of Appeal affirmed the judgment and the awarding section 998 costs.

The Plaintiff’s attorney filed a petition for rehearing which was denied.

While the instant appeal was unpublished, Jim has three published appellate decisions. He is also a member of ABOTA which requires, among other requirements, at least 10 jury trials to verdict for membership.

Rob Successful in Binding Arbitration

Headshot of Robert F Bennett On December 13, 2018, associate Rob Bennett secured a favorable arbitration award following an arbitration completed on December 11. Rob represented a young college student from Yuba City, sued in Sutter County following an accident in February, 2016. The accident occurred on East Hillcrest Avenue and Windsor Drive in Yuba City. The intersection is offset and the roads do not meet in square 90 degree angles. Prior to the accident, Rob’s client was traveling down Hillcrest whereas the plaintiff was traveling on Windsor. The plaintiff, a local nurse, pulled out from a stop on Windsor just as Rob’s client was entering in the intersection, causing a t-bone type collision.

As a result of the accident, the young plaintiff sustained a fractured pelvis and soft tissue injuries to her neck and back. She was transported to the hospital where the fracture was diagnosed but non-operable. After being off work for three months and completing physical therapy plaintiff’s fracture healed; although she asserted she continued to experience ongoing pain in her pelvis and back. Plaintiff was then referred to Ardavan Aslie, M.D., a Sacramento spine surgeon who recommended two surgical procedures including one on her lumbar spine and on the plaintiff’s coccyx.

At the arbitration, Rob presented a significant defense on liability with the testimony of his engineer. He successfully admitted evidence on the liability associated with the city’s design of the intersection and the comparative fault of the plaintiff’s driving. The plaintiff presented the testimony of her engineer to maintain the liability against Rob’s client but plaintiff’s primary focus was on her injuries and damages. Dr. Aslie testified in person at the hearing where Rob gained significant admissions as to the legitimacy of his proposed future medical care on cross-exam. Plaintiff alleged her past and future economic damages totaled $243,000.  Plaintiff requested a total award of $416,000.

Prior to the hearing, defendant served a C.C.P. § 998 offer to resolve for $20,001. The arbitrator awarded $26,658. While Rob just barely missed beating his prior offer, his clients were pleased with the result.

Sciacca Secures Defense Verdict

John Sciacca recently defended a client in a lawsuit for defamation and intentional infliction of emotional distress. It was alleged by the plaintiff that Mr. Sciacca’s client contacted the plaintiff’s employer to advise the plaintiff’s employer that the plaintiff was a convicted felon and had recently put sugar in the gas tank of a Jeep owned by Mr. Sciacca’s client. Within a few weeks, plaintiff was let go from his employment.

It was learned during the trial that plaintiff was, in fact, a temporary employee at his place of employment. He was on a contract, and his employer testified that he was released from employment because his contract had ended. His employer testified that the telephone call from Mr. Sciacca’s client had nothing to do with the plaintiff being let go from his place of employment.

Furthermore, Mr. Sciacca submitted evidence that although the plaintiff was not a convicted felon, the plaintiff had, in fact, been convicted of several misdemeanors, including assault and battery, and had been charged with felony child abuse. Additionally, Mr. Sciacca elicited testimony from one of his client’s roommates who was a retired investigator for the Federal Bureau of Prisons, who happened to be living at Mr. Sciacca’s client’s home when the plaintiff allegedly put sugar in Mr. Sciacca’s client’s Jeep. The plaintiff was also living at the home at this time. The retired prison investigator testified that he believed the plaintiff was the one that put sugar in Mr. Sciacca’s client’s gas tank. This was based upon his deductive reasoning and years of experience as an investigator in law enforcement.

In closing arguments, Mr. Sciacca argued to the jury that the alleged statements made by his client to the plaintiff’s employer were, in fact, substantially true. Furthermore, Mr. Sciacca highlighted that there was no evidence that the plaintiff had, in fact, suffered severe emotional distress. There was no evidence offered by the plaintiff that he had, in fact, sought treatment for his severe emotional distress with respect to the intentional infliction of emotional distress cause of action.

After a three day jury trial, the jury returned a defense verdict on both causes of action for defamation and intentional infliction of emotional distress on behalf of Mr. Sciacca’s client. Mr. Sciacca’s client was awarded costs as a result of the defense verdict.

Mr. Sciacca has handled a number of defamation cases in his career. He has only settled one defamation case, having all of the others dismissed by way of either Anti-SLAPP motions or defense verdict. As a result of Mr. Sciacca’s defense of defamation actions, Mr. Sciacca’s client’s have been awarded over $25,000 in attorney’s fees and costs to date.

Della Santa Successful in Motion for Summary Judgment

In this matter, Eric represented clients who were the first owners of a custom-built house in Calaveras County. Plaintiffs, the subsequent owners of the property, discovered multiple alleged defects in the house, many of which were attributed to a shifting foundation.

The plaintiffs sued the contractor who originally constructed the house. That contractor then filed a cross-complaint against Eric’s clients, alleging that they made modifications during their ownership of the house which actually caused all of the plaintiff’s complaints.

Eric filed a motion for summary judgment against the cross-complaint on the grounds that his clients would not be liable for any of the plaintiff’s damages even if they had undertaken such modifications. In California, a contractor who is part of the original construction and/or design of a structure is statutorily liable for any damages caused by defects in that construction or design within ten years. However, a mere homeowner is not so liable. The builder opposed Eric’s motion by arguing that, regardless of the statutory law, the clients should be jointly and severally liable to the plaintiffs for any damages that they caused or contributed to.

The Court agreed with Eric’s argument and reasoning, and issued its ruling, granting the motion and holding that absent any duty or statutory liability, Eric’s clients could not be jointly and severally liable to the plaintiffs for any damages caused by improvements they made to the property. Absent joint and several liability, there was no basis for the builders requests for indemnity, apportionment, or declaratory relief. The Court furthermore held that the cross-complainant’s independent cause of action against the Eric’s clients could not be maintained under the “tort of another” theory.

Through the successful motion Eric was able to secure judgment for his clients and was awarded costs.

Rob Obtains Summary Adjudication on Punitive Damages Claim

Headshot of Robert F Bennett In this Santa Clara Superior Court case, Rob represented a 19 year old man involved in a car accident in rural Morgan Hill. During the accident Rob’s client passed a vehicle on the wrong of the road and entered an intersection without stopping for a stop sign. After entering, his vehicle collided with the plaintiff’s vehicle causing it to overturn. As a result of the accident, the plaintiff suffered soft-tissue injuries and sued alleging general negligence and seeking punitive damages. Plaintiff alleged Rob’s client was reckless in his driving. In discovery, a friend who was a passenger in the defendant’s car testified that he believed his friend was driving recklessly.

Rob moved for summary adjudication on the punitive damages claim asserting his client’s conduct did not meet the requirements of Civil Code section 3294 as it was not malicious, fraudulent or oppressive. While the motion was vigorously opposed by the plaintiff given the significant leverage possible with allegations of punitive damages, the court ultimately agree with Rob, granting the motion and dismissing the punitive damages from the action.

This file was transferred to Rob by one of his clients given the complexity of the allegations and exposure. Prior to the transfer, plaintiff demanded over $200,000 to resolve his case. Following the successful ruling, the matter resolved for under $90,000, saving Rob’s client significant money and guiding the case to a resolution for the young man involved.

Eric Secures Dismissal

Eric Della Santa was recently successful in a motion to dismiss a plaintiff’s complaint against a client for failure to serve the complaint within two years.

Under the California procedural statutes, a plaintiff cannot intentionally engage in a protracted delay of the prosecution of his case. A failure to even serve the summons and complaint against a defendant within two years after it is filed provides discretionary grounds for a court to dismiss the action.

In this matter, the service was made within three years, which only gave the Court discretion to dismiss the plaintiff’s complaint. Dismissals in such circumstances are disfavored. However, Eric argued that his client’s ability to defend himself had been significantly prejudiced by the plaintiff’s delay, and that no good cause had so far been given for the failure to timely effect service.

The Court ultimately agreed with Eric, granted the motion and the complaint against the client was dismissed with prejudice.

Marlink Obtains Summary Judgment Against Plaintiff Seeking $4M

Katherine Marlink was recently successful on a motion for summary judgment resulting in a judgment in favor of a Powers Miller’s client. In this Sacramento Superior Court case, Plaintiff, a licensed contractor, filed suit seeking damages for injuries sustained while he was doing repair work on a rental property. While repairing a patio cover, Plaintiff fell to the ground sustaining significant injuries which included: a fractured scapula, a fractured clavicle, rib fractures, and a closed head injury with fractures of the temporal bone with subarachnoid and epidural hemorrhages. Plaintiff continued to complain of ongoing issues including those from his closed head injury including cognitive deficits such as memory loss and functional difficulties as well as hearing loss which have led to his inability to return to his usual and customary employment. Plaintiff received benefits in excess of $1,000,000 from the State Compensation Insurance Fund. Plaintiff demanded payment of $4,000,000 to resolve the matter prior to the filing of the motions for summary judgment.

Marlink moved for summary judgment on the grounds that the plaintiff’s claims were barred by the Privette doctrine and the doctrine of assumption of the risk. After significant opposition by Plaintiff’s counsel, including oral argument, the court agreed with defendants’ arguments and granted the motion summary judgment. The granting of the motion allowed defendants to not only obtain a judgment in their favor but also seek to recover costs of just under $5,000 incurred in the defense of the case.

Della Santa Successful in Dismissal of Matter

Eric Della Santa was recently successful in a motion to quash service on a client for improper use of a “Doe Amendment”. When properly used, Doe Amendments allow plaintiffs to add later-discovered defendants to a lawsuit even if the statute of limitations has already run. However, they cannot be used if the plaintiff already knew that defendant’s identity at the time of filing the complaint.

While there was no direct evidence of the plaintiff’s knowledge of the client’s identity at the time of filing the complaint, Eric was able to establish substantial circumstantial evidence that the plaintiff at least had possession of documents showing the client’s identity throughout the two years preceding the complaint. Based on the documents Eric moved that the plaintiff must therefore have known the client’s identity at some point, and that the failure to name the client in the complaint was not done in good faith.

The plaintiff filed an opposition essentially arguing that the plaintiff’s law firm was disorganized, that it had lost or misfiled documents, had very high staff turnover, and that these issues had caused the plaintiff to be genuinely unaware of the client’s identity. In reply, Eric argued the plaintiff still must have seen some of the documents which would have identified the client, and that a good faith attempt was still not made to correct the mistake.

In its rulling the Court agreed with Eric’s argument and analysis, and granted the motion. In its ruling it noted the negligence of the plaintiff’s attorney and the “woeful incompetence” of his staff. At oral argument, the plaintiff’s attorney admitted that someone in his firm could have known the client’s identity at some point, and the judge affirmed the tentative ruling.

As a result of this motion, the client was able to avoid being added as a defendant in the lawsuit.

Eric is a first-year attorney with the firm, and this was his first dispositive motion. Congratulations to Eric and his client.

Sciacca and Bowley Obtain Judgment Against Plaintiffs

Recently, Gordon Bowley and John Sciacca were successful in an Anti-SLAPP motion in a matter pending in Yuba County. The matter arose when their client was participating in a public debate regarding new ordinances and regulations related to marijuana. During that debate, the defendant made a comment about one of the other participants in the debate. The firm’s client also had a blog regarding issues related to those measures being presented on a ballot in Yuba County. Based upon the comments made at the debate and the blog that their client maintained, two individuals filed suit for libel per se.

Gordon and John initially reached out to the plaintiffs’ attorney advising that the lawsuit violated and attacked their client’s free speech and petitioning activity as the comments related to a matter of public concern and were made during and on public forums. Counsel for the plaintiffs was advised that failure to dismiss would result in an Anti-SLAPP motion and recovery of attorney’s fees pursuant to the applicable Code of Civil Procedure. The complaint was not dismissed.

John prepared the initial moving papers with respect to the Anti-SLAPP motion itself. Without receiving any timely opposition, John then strategically prepared a reply to a non-opposition for the Anti-SLAPP motion. Two days before oral argument, at approximately 5:00 p.m., Gordon and John actually received an opposition to the Anti-SLAPP motion by way of fax.

That night, John began preparing the reply to the opposition pointing out that the plaintiffs offered no admissible evidence showing that they had a likelihood of prevailing on their causes of action. John also pointed out that the opposition was not timely filed or served and there was no declaration supporting any excusable neglect on the part of the plaintiffs’ attorney. John also pointed out that the pleadings and the contentions in the pleadings did not have sufficient information to support the causes of action.

Gordon Bowley then finalized the reply providing further analysis that the complaint was insufficient to support the causes of action and that plaintiffs could not rely upon their verified complaint as admissible evidence in support of the opposition. The final reply was approximately ten pages and according to the judge hearing the matter it was “A+ quality work.”

John appeared at oral argument with respect to the Anti-SLAPP motion. A week after the hearing, the judge issued his ruling granting the Anti-SLAPP and awarded over $4,000 in attorney’s fees. Gordon and John have gone ahead and proceeded with a judgment against the plaintiffs for over $4,000.

Gordon and John have had recurrent success with Anti-SLAPP motions in their tenure with Powers Miller. Mr. Sciacca successfully litigated an Anti-SLAPP motion against a plaintiff who was represented by one of the preeminent authorities on internet law in the country. That particular case resulted in over $15,000 in attorney’s fees being awarded on behalf of John’s client. When it comes to complex civil litigation matters, Gordon and John have a well-known history of continued success.