On January 1, 2020, the firm promoted associate Rob Bennett to partner. Rob began with Powers Miller in 2009 and has been successful in many cases since joining the firm.
This Fresno Superior Court case stemmed from injuries alleged by the plaintiff following a dog bite. Plaintiff pled causes of action for both strict liability under both statute and common law as well as general negligence.
This Fresno Superior Court case stemmed from injuries alleged by the plaintiff following a dog bite. Plaintiff pled causes of action for both strict liability under both statute and common law as well as general negligence.
The dog at issue was originally purchased by
the client’s daughter years before the incident. However, due to circumstances beyond the daughter’s control, the dog ended up residing at the client’s home for approximately 9-12 months in the time leading up to the dog bite incident. It was only a day or two before the dog bite incident that the dog was returned to the daughter’s home where the dog bite occurred. Further, after the incident occurred the dog was again returned to the client’s home for a number of weeks.
Plaintiff’s counsel contended throughout the litigation that the defendant should be considered the owner of the dog at issue. Specifically, it was contended that residing with the client for months was sufficient to support ownership and that the few day departure from the defendant’s home was insufficient to relieve the defendant from this role as owner under the law. Prior to the filing of the motion for summary judgment, Plaintiff’s counsel served a C.C.P. § 998 offer for $49,999.00. In response the defendant served an offer of dismissal for a waiver of costs after making the position regarding the lack of liability clear and through the development of discovery.
When the offer to resolve for a waiver of costs was not accepted, Katherine Marlink filed a motion for summary judgment on behalf of the client alleging that the residency in the home alone was insufficient to declare the client an owner as a matter of law as it applied to dog bite cases. Relying on testimony from the client’s daughter that she always considered herself an owner and that the client also lacked other incidences of ownership as set forth in case law, Marlink set forth a compelling argument that the defendant was not an owner or even at keeper of the dog at the time the incident occurred.
After opposition and oral argument by the parties, the Court agreed that Plaintiff could not establish that the defendant was an owner or a keeper of the dog. Marlink’s motion for summary judgment was granted and a final judgment in the matter entered in favor of the defendant including the ability to recover some of the costs incurred during the course of the litigation.
Partner John Sciacca recently prevailed at trial in a Shasta Superior Court case against one of the most respected plaintiff’s law firms in Redding, California. The lawsuit arose following a car versus motorcycle accident in Redding in July, 2015. In the accident, John’s client made a left hand turn in front of the plaintiff motorcyclist on Churn Creek Road causing the collision. As a result, the plaintiff sustained a compound fracture to his right leg along with a significant injury to his leg tissue.
Initially plaintiff was hospitalized for three weeks for both surgical repair of the fracture and wound care. The surgical repair included implantation of surgical instrumentation in the right leg. The wound care consisted of a long inpatient stay at a wound care facility in San Francisco with major skin grafting. Further, there was concern during the treatment for the plaintiff that he would require below knee right lower extremity amputation. Plaintiff alleged damages were in excess of $500,000.
During the litigation, John discovered there was an issue as to whether or not the plaintiff had motorcycle liability insurance as required by California law. As a result, John Sciacca had to take extensive and detailed depositions of the plaintiff’s insurance representatives.
The matter went to trial in April of 2019. Prior to trial plaintiff made a demand for the insurance limits $1,250,000. Ultimately, the trial judge found that the plaintiff did not have insurance at the time of the accident, as required by California law. As a result, plaintiff’s recovery was limited to his economic damages only, which was an agreed to amount of $125,000.
Congratulations to John and his clients.
John Sciacca is a partner at Powers Miller and has been with the firm for
over nine years. John has significant experience defending and trying
cases involving traumatic injuries and wrongful death. John Sciacca
also routinely handles cases that involve exposures in excess of the
insurance limits and those related to complex legal issues.
By Evan McBride
In California, employers are generally liable for the actions of their employees. Known by its Latin name, respondeat superior, the rule is part of the much larger concept encompassing vicarious liability. Under California’s respondeat superior rule, an employer may be found liable for the damage caused by an employee’s accident, even when that employee uses their personal vehicle for their employer’s business purposes. This rule applies, and therefore attaches liability to the employer, when an employee is acting within the ordinary scope of his or her employment, and as the result of the employee’s wrongful actions, someone is injured. This generally holds true whether the employee is using their own car or their employer’s vehicle.
An exception to this rule, however, is the “coming and going rule” which stands for the premise that an employer may be excluded from liability when an employee’s accident occurs when the employee is commuting to and from work. Again, the most controlling factor in determining liability in this instance the purpose of the travel.
Within the “coming and going rule”, there exists the “vehicle use exception”. Under this exception, an employer may still be liable for an employee’s accident during their commute when: the possession and use of the vehicle is required by the employer, or the possession and use of the vehicle provided a benefit to the employer. In 2018, the California Court of Appeal of the Second Appellate District narrowed the “vehicle use exception” with their ruling in Newland v. County of Los Angeles.
The Newland court examined the accident of Prigo, a Los Angeles County public defender who was involved in an automobile accident on his way home form work in his own vehicle. It was undisputed that Prigo was regularly required to use his personal vehicle to drive to various Los Angeles County courthouses, crime scenes, and meetings. As a result, the trial court ruled that the central issue in the case was whether Prigo was required (either expressly or impliedly) to use his personal vehicle to perform the duties of his job for the county, and the jury found that he did, such a requirement would attach liability to the County via the vehicle use exception to the “coming and going” rule.
The Court of Appeal, however, reversed the trial court’s decision and held that there was not enough evidence to show that Prigo was neither required to drive a vehicle by his employer, nor was he driving a vehicle for his employer’s benefit at the time of the accident.
As for the first prong, the Court found that even though Prigo used his personal vehicle to drive to various Los Angeles County courthouses, crime scenes, and meetings everyday he was not required to do so. The Court pointed to the fact that the County did not require their deputy public defenders to obtain a personal vehicle to perform their jobs and allowed them to use alternative transportation to commute to work in lieu of carrying a valid California Class C driver’s license.
As for the second prong, Prigo’s accident occurred while making a stop at the post office for his own benefit while on the commute home from work. Thus, the court found, that at the time of the accident he was not driving his car within the course and scope of his employment nor was he driving for his employer’s benefit.
As such, the Newland Court reversed the trial court’s ruling, and found that the vehicle use exception to the “coming and going” rule did not apply to Prigo, and thus the County was not liable for his accident.
By ruling as it did in Newland, the court essentially held that the vehicle use exception to the “coming and going” rule is not an on-off switch. An employer will only be liable when they either required the employee vehicle or benefited from the employee travel. This narrowed approach to the exception will likely cause employers to be liable for employee accidents in less instances, as the circumstances where the exception applies will be fewer and far between. Likewise, employers may stand a better chance at avoiding liability for employee accidents by tailoring their travel requirements to comport with the Court’s narrow view of the vehicle use exception.
Evan McBride is an associate at Powers Miller whose practice specializes in civil liability stemming from vehicle accidents and other personal injury matters.
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.
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.
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.
In this matter, the Firm 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 the Firm’s clients, alleging that they made modifications during their ownership of the house which actually caused all of the plaintiff’s complaints.
The Firm 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 the Firm’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 the Firm’s argument and reasoning, and issued its ruling, granting the motion and holding that absent any duty or statutory liability, the Firm’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 Firm’s clients could not be maintained under the “tort of another” theory.
Through the successful motion the Firm was able to secure judgment for his clients and was awarded costs.
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.
An associate with the firm 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, the Firm 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 the Firm, granted the motion and the complaint against the client was dismissed with prejudice.