Leslie Price is Senior Counsel in Tyson & Mendes’ San Diego office. His practice focuses on general liability matters including catastrophic personal injury, premises liability, and the defense of libel and slander claims. Mr. Price is admitted to practice in all California state and federal courts and has over 30 years’ experience in all phases of litigation including investigation and discovery, mediation, arbitration, trial, and appeals. Over his career, he has successfully defended homeowners (easement disputes; dog bites; slip & fall; assault & battery), homeowner associations, supermarkets, contractors, manufacturers, pharmacies, landlords, bars & taverns, cosmetic makers, and motorists in a wide variety of motor vehicle collision cases.
Mr. Price has briefed and successfully argued several matters before the California Courts of Appeal, including the reported decision in Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 200 Cal.Rptr. 746, where the Court of Appeal determined a homeowner could not state a claim for negligent infliction for emotional distress after the home was damaged by a runaway bulldozer. Mr. Price also obtained a “no damage” verdict in defending a motorist who rear-ended a motorcycle where the passenger underwent exploratory laparotomy surgery shortly following the accident. He also obtained no negligence defense verdicts where a landlord in a high crime area was sued for injuries arising from a criminal assault on the property and a manufacturer was sued for wrongful death by the family of a worker who fell from a custom-built platform in their factory.
Mr. Price has held an AV Preeminent Rating from Martindale-Hubbell for more than 20 years, and was named a “Top San Diego Lawyer” by San Diego Magazine for 2017-2018. He graduated from the University of California at San Diego in 1977 with a B.A. in Economics. He obtained his J.D. in December 1981 from Loyola Law School. During law school, Mr. Price worked full time as a law clerk in a busy litigation firm from 1980 to 1982 to support his wife and their eldest child born in 1980.
Mr. Price enjoys spending time with his wife, Rebeca, their three adult children, and their first grandchild. He is an avid sports fan, cinephile, reader of novels, and enjoys exploring the many excellent hiking trails in San Diego. Mr. Price is fluent in Spanish.
Two recent decisions in the Courts of Appeal highlight a gray area in the application of the Primary Assumption of the Risk doctrine in the context of the duty owed by the host or organizer of a recreational activity to a participant subsequent to the participant’s injury or illness considered to be an inherent risk of the activity. Both cases dealt with defendant’s alleged negligence in aiding an unfortunate participant who fell victim to a risk inherent in their sport yet one defendant was found to owe a duty of care while the other was not.
Education – University Owes Duty of Care to Student Injured in Violent Assault
Regents of University of California v. Superior Court (March 22, 2018) 230 Cal.Rptr.3d 415, 413 P.3d 656
Plaintiff Katherine Rosen, a UCLA student, sued the Regents of University of California (UCLA) after she suffered severe injuries when she was stabbed during class without warning or provocation by a fellow student, Damon Thompson. A year before the assault Thompson began complaining to the administration of being verbally harassed and insulted by students and a professor. In a letter to the University he warned if the responsible parties were not disciplined, the matter would likely escalate into something serious and he would “end up acting in a manner that will incur undesirable consequences.”
CONSTRUCTION DEFECT – CALIFORNIA SUPREME COURT RULES REGARDING PRE-LITIGATION COMPLIANCE WITH THE RIGHT TO REPAIR ACT
McMillin Albany LLC v. Superior Court 2018 WL 456728 California Supreme Court (Opinion Published January 18, 2018)
Plaintiffs sued developer and general contractor McMillin Albany LLC in 2013 for numerous construction defects in 37 single-family homes which were built after January 2003. Plaintiffs’ common law causes of action included claims for negligence, strict product liability, breach of contract, breach of warranty, and a statutory claim for violation of the construction standards set forth in Civil Code § 896. Defendant requested Plaintiffs agree to a stay of the litigation so the parties could proceed through the informal process contemplated by The Right to Repair Act, Civil Code, §§ 895–945.5. Plaintiffs refused the request and the trial court denied the motion for stay, relying on Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, 163 Cal.Rptr.3d 600.
CIVIL PROCEDURE-ENFORCEMENT OF SETTLEMENT
Sayta v. Chu 2017 WL 5761195, First District Court of Appeal (Opinion Published November 29, 2017)
The parties to the underlying lawsuit, tenant and landlord, entered into a written settlement agreement which included mutual releases, dismissal of the complaint and cross-complaint, and a confidentiality clause, among other provisions. The Agreement also provided for enforcement of the settlement pursuant to Code of Civil Procedure § 664.6, stating all parties would dismiss their claims “subject to the parties’ express agreement and request that the Court retain jurisdiction pursuant to [section] 664.6 to enforce the remaining terms of this settlement agreement… .” Dismissals were filed as contemplated in 2015.
TORTS – ELDER ABUSE & MEDICAL NEGLIGENCE (Elders Right to Autonomy in the Medical Decision-Making Process)
Maxine Stewart v. Superior Court 16 Cal.App.5th 87, 224 Cal.Rptr.3d 219 (Certified for Partial Publication on October 12, 2017)
Decedent Anthony Carter, who was experiencing episodes of confusion, named Plaintiff Maxine Carter, a registered nurse, as his “healthcare agent” with a durable power of attorney for health care decisions during his admission to hospital owned by the real parties in interest. Some of the defendants, including real parties in interest, scheduled Mr. Carter surgery to install a pacemaker due to irregularities in his heartbeat. Plaintiff canceled the surgery, telling the doctors she thought the irregularities were related to Mr. Carter’s sleep apnea. She requested a second opinion regarding the need for a pacemaker. Plaintiff was informed about two weeks later after an ethics committee meeting the some of the defendants, including real party in interest, would continue with the pacemaker procedure despite plaintiff’s objection. Shortly after surgery Mr. Carter went into cardiac arrest and later passed away.
A recent decision of the Court of Appeal decision addressed application of the Open and Obvious Doctrine in a premises liability case. In Jacobs v. Coldwell Banker Residential Brokerage Company (2017) 14 Cal.App.5th 438, 221 Cal.Rptr.3d 701, the Second District Court of Appeal affirmed summary judgment in favor of a defendant landowner sued for negligence by a plaintiff who was seriously injured after falling into an empty pool. If there is an “open and obvious” issue, can the defendant successfully argue there is no triable issue of fact, thereby avoiding a jury trial, or will the court determine “open and obvious” is a jury question to be decided under the doctrine of comparative negligence?
In a published opinion filed on July 31, 2017, the Fourth District Court of Appeal, Division One, held in a 2-1 ruling an arbitration agreement between a 24-hour skilled nursing facility and deceased resident was enforceable in a lawsuit filed on behalf of the heirs. Baker v. Italian Maple Holdings, (2017) 13 Cal.App.5th 1152. The appeal was filed after the trial judge denied the defendant’s petition to compel arbitration in reliance on a 2009 ruling of the Second District Court of Appeal, Division Seven, in Rodriguez v. Superior Court (2009) 176 Cal.App.4th 1461. The conflict arose from the interpretation of Code of Civil Procedure Section 1295(c) which requires inclusion of a clause which allows a patient to rescind a binding arbitration agreement contained in a contract for medical services within 30 days of signature by the patient.
A recent decision in a construction defect case from the 1st District Court of Appeal, filed May 2, 2016, Hearn Pacific Corporation v. Second Generation Roofing Inc., 201 Cal.Rptr.3d 806, reminds us of a few legal precepts that are sometimes forgotten in the turmoil of litigation. Do not take contradictory legal positions without explanation. Do not ignore evidence or authority contrary to your position. Do not play hide-the-ball with the Court. Do not sell out one client at the expense of another without explanation. Justice Therese M. Stewart succinctly summed up this case: “It involves a civil procedure game of cat-and-mouse like none we have before encountered.”
It is time to once again update your standard settlement agreement for personal injury claims. Where does the time go? Carriers, self-insureds and their counsel will no doubt be adding another clause to what is typically an overly long standard agreement. Why, pray tell, would you want to do that?
While hindsight is always 20/20, important lessons stem from this jury trial which apply to cases across the country. This article assesses the Andrews trial and provides four “lessons” for businesses, insurance professionals, and defense counsel to avoid runaway jury verdicts: (1) Spot and Slay the Reptile; (2) Accept Responsibility for Something; (3) Always Give a Number, Even When Seeking a Defense Verdict; and (4) Proceed Delicately.