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.
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.
An associate with the Firm 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, the Firm 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 the Firm 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, the Firm 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 the Firm’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.
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.
John Sciacca recently obtained a defense award in a binding arbitration. The arbitration arose out of a case involving premises liability. This was a third party matter that was originally set for trial. Pursuant to the plaintiff’s request, the parties stipulated to binding arbitration.
In this matter, the plaintiff was a tenant of the defendant’s property. The plaintiff had lived on the defendant’s property in excess of two years prior to the incident occurring. According to the plaintiff, she allegedly fell upon a stair in the rear of the property that allegedly moved when she stepped upon the stair. John Sciacca and his client argued that the stair did not move and even if it had, his client had no notice of the alleged dangerous condition, i.e. the stair moving. Continue reading
Claimant was involved in an automobile accident with an underinsured motorist in 2003 and subsequently settled with the third party for the policy limits in late-2006. The claimant expressed a desire, through counsel, to pursue an underinsured motorist claim pursuant to the terms of his automobile policy. By 2015, the claim remained unresolved with attempts to bring the matter to completion hindered by a failure of claimant’s counsel to respond to requests to select an arbitrator. Continue reading
On May 1, 2015, Jim Miller completed a 10 day jury trial in San Joaquin County Superior Court where the plaintiff sought over $7,000,000.00 in damages for lost wages, medical expenses and pain and suffering allegedly arising from an incident that occurred at Jim’s client’s store. The intervenor, Zenith Insurance Company, sought repayment of workers’ compensation benefits paid to the plaintiff. After hearing the testimony of eight medical doctors, three liability experts, an economist, a neuropsychologist, two vocational rehabilitation experts, the plaintiff, his wife, daughter and two defendant company representatives, the jury returned a verdict finding the plaintiff 75 percent at fault for the incident and awarded him $720.00. The intervenor received a verdict of zero dollars. Since Jim’s client had served both the intervenor and the plaintiff with 998s well above the jury verdict amounts, he is seeking over $133,000.00 in costs and expert fees from the intervenor and plaintiff. Continue reading
John Sciacca filed a Motion for Summary Judgment in this matter in regards to a collision that occurred while plaintiff and defendant were skiing at Alpine Meadows Ski Resort on April 3, 2011. The Placer County Superior Court granted John Sciacca’s Motion for Summary Judgment on the grounds that the defendant did not owe any duty to the plaintiff to avoid careless conduct that frequently occurs while skiing under the doctrine of assumption of risk. After judgment was entered, the plaintiff appealed the Placer County Superior Court’s decision. Continue reading
Plaintiff Hernandez filed a lawsuit in Sacramento County Superior Court for personal injuries arising from a rear-end motor vehicle collision that occurred on January 19, 2012. At the time the collision occurred, Mr. Hernandez was off from work for similar injuries sustained in a work-related incident that occurred on August 29, 2011. Rather then proceed with a trial of the matter, the parties agreed to binding arbitration. Continue reading
Jim Miller arbitrated a claimed tinnitus case. The arbitration was conducted over a two-day period in December 2014 and January 2015. The hearing arose out of a two car motor vehicle accident which resulted in moderate damage to the back-end of the claimant’s vehicle. As a result of the accident, the claimant claimed he sustained soft tissue injuries as well as severe tinnitus that was ongoing and permanent. Jim and his experts conceded that the claimant did have tinnitus and that it arose from the subject accident. However, there was a dispute over the damages that should be awarded for such an injury. Continue reading