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California Case Law Update

JUROR’S JOKE DURING JURY SELECTION “HARMLESS FUN”

ExxonMobil Oil Corporation v. Southern California Edison Company – 2016 WL 2:12-cv-10001, U.S. District Court for the Central District of California

ExxonMobil recently lost a suit in which it sought $32 million in damages from Southern California Edison for negligently causing a refinery’s power outage.  ExxonMobil sought a new trial based on a statement made by a man during jury selection regarding the refinery itself and its propensity for issues.

During jury selection, the man, who was eventually chosen as a juror over objection, stated the ExxonMobil refinery “blows up all the time.”

ExxonMobil requested a new trial based in part on the man’s statement and alleged the man’s statement showed prejudicial bias, which contributed or caused the verdict.

U.S. Magistrate Judge Michael R. Wilner disagreed and explained the context of the statement, since the man lived in close proximity to the ExxonMobil refinery.  “When he made his comment about the refinery, that he was familiar with it and it was ‘the place that always blows up,’ I very clearly and objectively understood him to be making a lame attempt at comedy,” Judge Wilner said.

Judge Wilner provided a tentative ruling on June 22, 2016, where he stated he was “not inclined” to grant a new trial and the joke was “harmless fun.”

TORTS: PRIMARY ASSUMPTION OF RISK

Bertsch v. Mammoth Community Water District, 2016 WL 3201383 – Cal.App. 3 Dist. – June 16, 2016

Brett Bertsch was a teenager who tragically lost his life when he and his brother were skateboarding in Mammoth Lakes. They were traveling downhill at a “pretty fast” speed, and without helmets, when the front wheels of Brett’s skateboard hit a small gap between the paved road and a cement collar surrounding a manhole cover, stopping the wheels and ejecting Brett from the board, causing his death.

Plaintiffs, Brett’s father and brother, brought a wrongful death action, claiming negligence on multiple parties for inspecting and maintaining the manhole cover and the road where the incident occurred.

Defendants moved for summary judgment and asserted plaintiffs’ lawsuit was barred by the doctrine of primary assumption of risk. Specifically, defendants argued skateboarding is an activity that is “‘done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury,’ ” and because Brett assumed the risks inherent in skateboarding, including the risk of falling, defendants owed no duty to plaintiffs to protect Brett against that risk.

The trial court granted summary judgment in favor of defendants, concluding the doctrine of primary assumption of risk barred plaintiffs’ lawsuit as a matter of law.  The “critical undisputed fact” was Brett and Mitchell deliberately turned left onto West Bear Lake Road and went uphill a short distance “to purposely have a longer downhill ride” before meeting up with their father to go rock climbing.

Plaintiffs appealed.

The Appellate Court concluding the summary judgment motions were properly granted and affirmed the lower court’s order.

PRODUCT LIABILITY

Julia Reniger et al. v. Hyundai Motor America et al., (2016) case number 3:14-cv-03612, filed in the U.S. District Court for the Northern District of California

Plaintiffs Julia Reniger and a number of other drivers experienced a number of braking and steering problems in their Hyundai Santa Fe’s, modeled 2010 through 2012.  Plaintiffs sued Hyundai in 2014, alleging Hyundai intentionally failed to disclose a stalling defect in the vehicles that caused power to shut off, posing serious safety concerns. The complaint also included violations of California’s Unfair Competition Law and Consumers Legal Remedies Act, violation of the federal Magnuson-Moss Warranty Act, and breach of implied warranty pursuant to the Song-Beverly Consumer Warranty Act.

The parties attended mediation and agreed Hyundai would reimburse drivers who paid out of pocket to fix the stalling issue and give them up to $2,000 toward the purchase of a new car.  This agreement was memorialized in a motion to the court where they ask the court to grant preliminary approval of the settlement and certify a settlement class of about 77,000 people who leased or owned the affected vehicles.

In addition to the agreement for the plaintiffs, attorneys for the drivers plan to apply for fee and expenses of $745,000 to be paid separately by Hyundai. The court has yet to rule on this motion.

ATTORNEY MALPRACTICE – PRIVILEGE

Richard P. Hausman Sr. as trustee of the Marilyn Hausman Successor Trust et al. v. McDermott Will & Emery LLP et al., case number 30-2015-00785872, in the Superior Court for the State of California

The case arises out of the law firm McDermott Will & Emery LLP, (“McDermott”) hiring another firm, Gibson Dunn & Crutcher, LLP, (“Gibson”) as counsel in two legal malpractice cases filed by grandchildren of the founder of pharmaceutical giant Allergan Inc. and their father, Richard Hausman Sr.

The Hausman lawsuit accused McDermott of helping one sibling gain control of the family’s $50 million holding company to the detriment of others.

In May, Judge Sheila Fell, of the California Superior Court, disqualified Gibson as counsel.  Gibson immediately filed a petition to the state appeals court claiming the disqualification was based on its review of emails found in its client’s files, including information the client had received years before the underlying cases began.

The Fourth Appellate district agreed and stayed the underlying actions while ordering plaintiffs to show why it should not grant relief to Gibson.

COMMERCIAL LAW

Ciganek v. Portfolio Recovery Associates, LLC, 2016 WL 3163233 – U.S. District Court, Northern District – June 7, 2016

Plaintiff William Ciganek, Jr., brought a putative class action case for violation of the Fair Debt Collection Practices Act.  Plaintiff’s case involved Defendants’ alleged failure to comply with Cal. Civ. Proc. Code § 98, which provides in relevant part:

“A party may, in lieu of presenting direct testimony, offer the prepared testimony of relevant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

(a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

(b) The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

Defendant did not dispute the relevant facts which were as follows:

On an unspecified date, Plaintiff opened a consumer credit account with GE Capital Retail Bank/General Electric Capital Corp/Care Credit. Plaintiff subsequently defaulted on his consumer credit account, and the defaulted debt was “sold, assigned, or otherwise transferred” to Defendants, then placed the debt with collections company.

In March 2015, Defendants, seeking to collect the defaulted consumer debt from Plaintiff, filed a lawsuit against Plaintiff in the Superior Court of California, Santa Clara County.  On July 22, 2015, Defendants sent Plaintiff a document titled “Declaration of Plaintiff [in the state court litigation] in Lieu of Personal Testimony at Trial (CPP § 98).” The Declaration described Plaintiff’s unpaid credit account and was signed by PRA employee Maria Marin. The provided address was not Marin’s residential or work address.  Nevertheless, Defendant was authorized to accept service of process on Marin’s behalf at the provided address.  Plaintiff alleges that Marin lived more than 150 miles from the location of the trial courthouse, and Defendants do not dispute this allegation.

The Complaint alleged Defendants violated the FDCPA by using declarations in lieu of personal testimony at trial, pursuant to Cal. Civ. Proc. Code § 98, where the declarant was physically located more than 150 miles from the place of trial.

Defendants filed a motion for summary judgement.  The Court granted Defendants’ motion and found a declaration in lieu of personal testimony at trial could be used even though declarant was physically located more than 150 miles from place of trial.

A debt collector did not make a misrepresentation in violation of the Fair Debt Collection Practices Act by using declarations in lieu of personal testimony at a trial in California even though the declarant was physically located more than 150 miles from the place of trial. The California statute governing prepared testimony in lieu of direct testimony permitted a declarant to provide an address within 150 miles of the place of trial where the declarant was available for service of process but where the declarant was not physically present for personal service.

ABOUT THE AUTHOR: Kyle Pederson’s primary focus at Tyson & Mendes is personal injury, professional liability, and employment litigation.  Contact Kyle at 858.263.4122 or kpederson@tysonmendes.com.