2024

Christmas Defense Verdict

On December 24, 2024, Scott Macdonald and Jorge Lopez Herrera secured a defense verdict in Van Nuys, California.  Plaintiff was a tenant of our client.  She claimed that a shower door failed and came off of its tracks.  The door hit plaintiff in the head and caused her head to be pushed back into a wall.  She fell to the floor and lost consciousness.  She was found by a family member that had been staying with her.  Plaintiff claimed that the shower door was dangerous and that defendant had been put on notice that the door was “dangerous” roughly six months before the incident and did not properly repair the door.  Defendant denied that he had ever been put on notice of anything being wrong with the door and disputed that it was dangerous.  It was established that the plaintiff used the shower door for six months and between 150-180 times after the alleged notice of the door being dangerous.  We argued that no one could say why the door came off the track, and that defendant could not have been put on notice of a dangerous condition because no one could identify what the dangerous condition was.

Plaintiff claimed a traumatic brain injury and sought between $5,000,000 to $7,000,000 from the jury.  Defendant conceded a minor concussion by history and sought to establish that any healing occurred immediately or very shortly thereafter.

The Jury deliberated and issued a defense verdict on liability.  Post-Trial motions at the trial Court level were denied.

California Supreme Court Denies Plaintiff’s Petition to Reverse Order Sustaining Demurer in Defendant Homeowner’s Favor in Criminal Home-Invader Case

Scott L. Macdonald and Edye A. Hill secured an appellate victory in a homeowner personal injury case. On November 13, 2024, the California Supreme Court denied Plaintiff’s petition to review the Appellate Court’s order affirming the Trial Court’s Order that sustained a demurrer without leave to amend. Both higher courts approved and affirmed the ruling in Defendant’s favor.

Plaintiff was a social, overnight guest at Defendant’s residential home. During Plaintiff’s stay, a criminal trespassed into the house, killed Defendant’s spouse and child in their beds, and stabbed Plaintiff multiple times. Plaintiff alleged that Defendant was liable for the personal injuries that she suffered from the attack by a third-party criminal because Defendant was the last adult to arrive home the night before; Defendant failed to ensure the sliding glass door and windows were locked; and Defendant failed to set the house alarm. The uninvited third-party admitted to law enforcement that he would not have entered the home if the sliding glass door was locked. Defendant has no pre-existing relationship with the third-party trespasser. There were no prior instances of criminal activity or violence at the residential home prior to the subject incident. The operative complaint alleged that Defendant discussed his prior purchase of a gun during dinner with Plaintiff because Defendant was aware of increasing crime rates; that Defendant’s Chinese heritage made the house a target for robbery due to the stereotype of Asians keeping their jewelry and valuables at home; and the rise of Anti-Asian hate in the community, State, and nationwide.

Defense Counsel successfully obtained a demurrer to Plaintiff’s First Amended Complaint against the sole cause of action for negligence and persuaded the Trial Court to deny leave to amend to Plaintiff. The Trial Court agreed that Plaintiff failed to allege sufficient facts showing that Defendant homeowner owed a legal duty to prevent the criminal actions of a third-party and in particular the lack of factual allegations that Defendant had any notice or warning about impending criminal activity at the residence was detrimental to Plaintiff’s case. The Trial Court sustained the demurrer without leave to amend.

Plaintiff pursued an appeal of the Trial Court’s ruling. The appeal was taken up by the Fourth Appellate District Court. On appeal, Plaintiff argued that the burden on the homeowner Defendant was zero because the sliding glass door already had a lock; a house alarm was already installed; and Defendant would have incurred no additional financial costs to simply turn the lock on the door and to push the alarm button “on”.

Defense Counsel prepared a detailed appellate response brief. Defendant argued that Defendant owed no duty to Plaintiff to protect Plaintiff from the criminal actions of a third-party. Defendant’s appellate brief argued that: heightened foreseeability is required for third-party criminal conduct; that judicial precedent in homeowner cases required actual knowledge of crimes before imposing a duty for to protect against third-party conduct; there were no facts of prior crime at Defendant’s residence alleged in the operative complaint; Plaintiff’s citation to statistical reports, government records, and new articles about crime and Anti-Asian hate do not give rise to a new duty to protect; that casual dinner table talk does not establish actual knowledge of criminal threats; the third-party’s actions were not foreseeable; and that Defendant’s alleged negligence in failing to ensure the doors were locked and the alarm set did not cause Plaintiff’s injuries. Defendant also argued that public policy factors did not favor imposing a new duty to lock all doors and windows and to always set the house alarm on residential homeowners.

Both Defense Counsel and Plaintiff Counsel presented oral argument before the Appellate three-judge panel. Plaintiff Counsel argued that Defendant has an affirmative duty to use the safety precautions of locks and the house alarm that were already in place. Plaintiff contended that but for Defendant’s failure to engaged the lock and alarm that had “zero burden”, the stabbing by the third-party invader would not have occurred. Defense Counsel argued that the burden on the homeowner Defendant was high because the imposition of a new duty to protect social guests would require all homeowners to serve as a bodyguard and sentry against any violent actions by unknown, surprise attackers. Defense Counsel argued that imposing a new duty to guarantee absolute security by locking all doors and setting alarms was susceptible to a wide range of passive human error such as where the homeowner fell asleep watching television or a guest or child unlocked a window or opened a door without the homeowner’s knowledge.

The Appellate Court agreed with Defendant finding that even under the assumption that there was a special relationship between a homeowner and overnight guest, the Rowland v. Christian (1968) 69 Cal.2d 108 factors could not be satisfied by Plaintiff. The reviewing judicial panel found that light of the absence of facts to establish prior notice of criminal acts and that there was no causal nexus between the homeowner’s omissions and the injury suffered, the third-party’s criminal acts were not foreseeable. The Appellate Court ruled that Defendant’s failure to check the door and set the alarm were not sufficiently likely to result in the attack on Plaintiff and the death of Defendant’s spouse and child. The Appellate Court affirmed in Defendant’s favor.

Plaintiff then petitioned the California Supreme Court for higher court review of the Appellate Court’s ruling. Plaintiff argued that both the Appellate Court and the Trial Court erred in holding that Defendant owed no duty to Plaintiff. Defense Counsel prepared and filed an extensive Answer to Plaintiff’s Petition arguing that the Appellate Court correctly affirmed the demurrer because the criminal acts were not foreseeable; the Defendant homeowner did not cause Plaintiff’s injuries; there is no duty for affirmative preventive measures on homeowners; imposing a duty to ensure that the residence is fortified against crime is not workable; even a low financial burden does not justify the imposition of a new duty on homeowners; the social burden would be onerous; a duty to lock all doors and set all alarms would not likely change future behavior; and the availability of insurance would be adversely affected. Without permitting further briefing or any oral argument, the Supreme Court denied Plaintiff’s petition.

Result: The Trial Court’s Order sustaining demurrer without leave to amend remains in place and the judgment in Defendant’s favor becomes final. Defendant was awarded costs of appeal.

LA Jury Returns a Unanimous Defense Verdict Within 18 Minutes on a Disputed Liability Case Involving Surgery

On February 21, 2024, Marvin Velastegui obtained a defense verdict where an LA jury found no negligence on the part of the defendant.

This case involved disputed liability as it was two vehicles approaching one another in a narrow residential neighborhood.  The plaintiff and defendant had two different versions of how the incident occurred and the photographs depicted a minor impact.  The plaintiff claimed about $400,000 in past medical lien treatment that included chiropractic care, acupuncture, multiple low back injections, an SI joint fusion surgery, and physical therapy.  The plaintiff also claimed about $70,000 in past wage loss and a future neck surgery recommendation in the amount of $250,000.  In closing, the plaintiff’s attorney asked for a total of $1.7 million.  The jury deliberated for 18 minutes and came back with a unanimous decision that the defendant was not negligent.

Jury Awards Only 0.63% of Plaintiff’s Ask in a Left-Turn Accident, Conceding Liability

On February 7, 2024, Michael J. Cody and Danielle M. Boyd secured a successful result at trial in Orange County regarding a left-turn accident with conceding liability. The clients included an Orange County dealership and its employee, a courtesy shuttle driver, acting in the course and scope of employment during the accident. Prior to trial, Defendant made a 998 offer for $450,000 while Plaintiff made a 998 offer for $650,000. 

Per testimony, the accident occurred near an active school zone, with a posted 25-mile-per-hour speed limit. According to police body camera footage of the accident, there were schoolchildren in the crosswalk. Plaintiff admitted to driving at 40 miles per hour and testified that her foot was not on the brake at the time of impact. Her airbags did not deploy.

Defendant shuttle driver testified that he saw Plaintiff’s vehicle approaching but stated that there was enough space to execute a left turn, and that he did not ignore the rules of the road. As Defendant began his left turn, Defendant and Plaintiff’s vehicles contacted, with the impact occurring at the front right bumper of Plaintiff’s vehicle. There was conflicting testimony presented by a nonparty involved in the accident as to whether the nonparty had an impact with the shuttle driver’s vehicle first or with Plaintiff’s vehicle. 

Following the incident, Plaintiff’s vehicle was driven from the scene of the accident by her boyfriend. Plaintiff was then transported by ambulance to a local hospital where she was discharged the same day. 

Defense accident reconstruction/biomechanical expert agreed with Plaintiff’s accident reconstruction expert that the delta-v of the impact was 7-9 mph. He also testified as to the crash duration time and the g-force to Plaintiff’s body. He testified that the impact Plaintiff felt upon impact would cause muscle sprain/strain, but nothing traumatic and nothing to cause a disc injury. Plaintiff’s accident reconstruction expert did not calculate the crash duration time or the force to Plaintiff’s body.

In the seven months following the incident, Plaintiff attended seven chiropractor appointments, received one injection to the cervical spine and ultimately underwent an anterior cervical discectomy and fusion at two levels. Plaintiff’s spine surgeon described the surgery that Plaintiff underwent for the jury. Plaintiff’s orthopedic surgeon relied on one image from the MRI of the cervical spine to explain why the surgery was warranted. He was unable to tell the jury whether Plaintiff had pre-existing bulges and protrusions or if they were caused by the accident. 

Defense orthopedic surgeon testified that in reviewing Plaintiff’s imaging, the objective evidence in medical records, and the independent medical examination, Plaintiff did not have structural damage to her spine; she had pre-existing degenerative bulges. There was no finding in the post-accident MRIs of traumatic herniation or significant narrowing around the nerves. This was confirmed by the emergency room doctor and the emergency room radiologist as Plaintiff had a normal neural examination and normal imaging for her cervical spine – i.e. no disc injury. Defense neuroradiologist further explained the post-accident MRI films and the day of accident CT scan in depth. He testified that there was no nerve impingement in the cervical spine at the levels Plaintiff’s spine surgeon was claiming were at issue.

Defense orthopedic surgeon largely testified that Plaintiff’s cervical spine surgery was unwarranted as there was no nerve to decompress. Defense orthopedic surgeon confirmed that the arm and hand symptoms Plaintiff was experiencing were not due to her neck because there was no nerve compression. He also testified about what would be reasonable care and the reasonable costs of such care. Following treatment in 2021, Plaintiff did not require further treatment. Defense orthopedic surgeon testified that Plaintiff did not undergo sufficient conservative treatment before resorting to interventional measures.

Plaintiff’s boyfriend and sister-in-law testified to her pre and post-accident status, stating that the accident affected Plaintiff’s ability to go on outings with her boyfriend’s daughter. Plaintiff also presented testimony of being unable to walk her dog and noted that she still had pain after her cervical spine surgery.

In closing arguments, Plaintiff asked for over $11,000,000. Plaintiff’s ask consisted of over $2,900,000 in past noneconomic damages and $8,100,000 in future noneconomic damages. Further, Plaintiff requested $152,100 in past medical specials. Defense gave different options to the jury for past medical expenses and told the jury there were no future noneconomic damages to award and no future medical expenses to award.

Result: The jury returned a verdict: $20,000 in past medical expenses, no future medical expenses, $50,000 in past noneconomic damages, and no future noneconomic damages. The jury found Plaintiff negligent and that her negligence caused her injuries. The jury apportioned 30% fault on Plaintiff, and the remainder on Defendant, resulting in a jury award of $49,000. Defendant was entitled to costs.