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San Diego, California 92101
Telephone: 619.239.0300
Toll Free: 866.610.3040
Fax: 619.239.0344
Email: info@whiteamundson.com

Verdicts, Settlements & Motion Successes

Insurance Bad Faith

White Oliver Obtained Successful Result in Auto Insurance Matter

Lily Boyd v. 21st Century,
San Diego Superior Court Case No. 37-2008-00094904-CU-IC-CTL

Robert E. Gallagher, Jr., Beth Manover Mercaldo and Dana Harris Furman prevailed on behalf of the defendant 21st Century Insurance. The plaintiff, a former 21st Century employee, sought damages from 21st Century for breach of contract, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress and reformation following an automobile accident involving her daughter.

The plaintiff claimed that after her daughter turned 18, and began living out of state, that she tried to remove her as a named driver exclusion from her 21st Century policy through the company's customer care website. In August 2006, when plaintiff attempted to, the website prevented the plaintiff from accomplishing removing her daughter as the named driver exclusion, and was directed to contact customer care. The plaintiff claimed that she spoke with a customer care, and was told the exclusion will be removed. Following this phone call the plaintiff received a revised policy declaration reflecting that her daughter was still listed as an excluded driver. On October 27, 2006, the plaintiff's daughter was involved in an at fault traffic collision. The plaintiff sent a certified letter with return receipt requested to 21st Century bearing a date of October 15, 2006, that was not received in 21st Century Woodland Hills office until October 31, 2006. The plaintiff could not produce proof of mailing on October 15, 2006.

21st Century took the position that since the daughter was the subject of a named driver exclusion, and had never been rated as a driver, the underwriting guidelines prohibited the plaintiff from deleting the named driver exclusion on the self help website. The customer care representative testified at trial that following the conversation with the plaintiff in August 2006, the named driver exclusion was not removed, as the plaintiff refused to provide her daughter's drivers license number, an underwriting requirement where a driver has been excluded from a policy for underwriting reasons. Underwriters from 21st Century confirmed the underwriting requirements. The plaintiff argued that 21st Century waived its underwriting rules when the customer care representative told plaintiff it was taken care of. 21st Century argued that there was no waiver by the words or conduct of the customer care representative, and that the policy language was clear that the policy could only be changed, modified or altered by a writing issued by 21st Century therefore the plaintiff could not establish reliance on any representation by the customer care representative, as the plaintiff knew that the exclusion was still effective when she visited the 21st Century website on or about October 15, 2006.

White Oliver Obtains Summary Judgment in Automobile Insurance Matter

Saundra Eady v. Coast National Ins. Co.; Bristol West Ins.
Service of California, Inc.
,
San Diego Superior Court Case No. 37-2009-00095426-CU-BC-CTL.

The plaintiff alleged that the defendants did not properly cancel her automobile insurance policy which involved breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud. The plaintiff also alleged that because her policy was cancelled at the time of her auto accident, she did not have insurance coverage, and therefore in her suit against the other driver she was barred from recovering general damages.

The plaintiff failed to pay the minimum amount due on her policy as set forth in a code compliant Notice of Cancellation. The plaintiff did not make a timely payment sufficient to avert cancellation or to reinstate the policy until after the cancellation date. The plaintiff's insurance policy was properly cancelled. She was involved in an accident a couple of days later. It was not until after her accident that she made a payment. As such, there was no insurance policy in effect at the time of her accident, and therefore no insurance coverage at the time of the accident and her claim was properly denied.

Beth Manover Mercaldo successfully obtained a motion for summary judgment for White Oliver's client based on the grounds that there was an effective notice of cancellation of her insurance policy.

White Oliver Obtains Dismissal in Dispute Over Med-Pay Coverage

Joane Soares et al. v. Mid-Century Insurance Company,
San Diego Superior Court Case No. 30-2009-00311213-CU-CO-CJC

Robert E. Gallagher and Dana H. Furman defended Mid-Century Insurance on a suit arising out of a dispute over Med-Pay coverage. The plaintiffs were involved in an automobile accident and carried automobile insurance through Mid-Century Insurance Company. The other driver in the automobile accident also carried an insurance policy with Mid-Century. The plaintiffs were dissatisfied with the way Mid-Century processed their claim and brought suit for the following:
· Tortious breach of insurance contract, bad faith, and violations of the covenant of good faith and fair dealing;
· Declaratory relief;
· Violations of California Business & Professions Code Section 17200, et Seq.

White Oliver filed a demurrer on behalf of Mid-Century, and the court sustained the demurrer with leave to amend. The plaintiffs then filed a First Amended Complaint alleging only one cause of action, violations of California Business & Professions Code Section 17200, et Seq.

White Oliver again filed another demurrer, citing Moradi-Shalal v. Fireman's Fund, Inc. Companies and Texton Financial Corp. v. National Union Fire Ins. Co. of Pittsburgh, and the court again sustained the demurrer with leave to amend. Since the plaintiffs were unable to plead around the arguments set forth in White Oliver's demurrers, they agreed to dismiss their action with prejudice, in exchange for a waiver of costs.

White Oliver Obtained Dismissal in Breach of Contract Matter Involving Automobile Insurance

Oraha v. Mid-Century Insurance Company,
San Diego Superior Court Case No. 37-2009-00068438-CU-IC-CTL

Plaintiffs Yousif and Bassam Oraha filed suit against Mid-Century Insurance Company for breach of contract and breach of the implied covenant of good faith and fair dealing. More specifically, the insured Yousif Oraha's policy of automobile insurance no. 17753-98-41 was properly cancelled for non-payment of premium on June 20, 2006. On July 14, 2006, the insured's brother Bassam Oraha was involved in an automobile accident, while driving Yousif Oraha's automobile. Mid-Century denied coverage for the July 14, 2006 accident, as there was no policy in effect at the time of the accident.

Mid-Century filed a motion to compel responses to form interrogatories and request for monetary sanctions. The Court granted the motion on July 23, 2010. The Court further awarded monetary sanctions in the amount of $1,032.00. Plaintiffs failed to respond to discovery or pay the sanctions. They also failed to produce themselves for depositions. Mid-Century thereafter filed a motion for terminating sanctions. The motion was granted and dismissal of the Complaint as to Mid-Century was entered on September 3, 2010.

White Oliver Obtains Favorable Judgment With Demurrer Filing

Felicisima Almazan v. Farmers Insurance Exchange,
San Diego Superior Court Case No. 37-2010-00074558-CU-PA-SC

Plaintiff alleged causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress, intentional infliction of emotional distress, and Violation: California Dept. of Ins. Consumer Bill of Rights. Farmers filed a demurrer to each cause of action in the Complaint for failure to state facts sufficient to state a cause of action. The demurrer was also based on its uncertain nature. The Court sustained the demurrer without leave to amend. Judgment in favor of Farmers was entered on August 5, 2010.

White Oliver Successfully Obtained Dismissal in Legal Malpractice Matter Involving Underlying Fraud Action

Chau & Lee v. Tatro & Zamoyski,
San Diego Superior Court Case No. 37-2009-00102690-CU-FR-CTL

Attorney Peter Zamoyski and the firm, Tatro & Zamoyski, LLP represented the defendants, Paul Chau and Lana Lee in an underlying fraud action brought against them by Paul Chau's sister Rosemary after failing to manage an extensive remodel of her home subsequent of receiving substantial monetary sums to complete these duties. Tatro & Zamoyski were one in a series of law firms who represented Chau and Lee in the Chau v. Chau action.

Chau and Lee became delinquent in payment of Tatro & Zamoyski's fees, due pursuant to a written fee agreement. Chau and Lee agreed to sign a promissory note and provide a deed of trust to Tatro & Zamoyski as security for past unpaid and future fees. A conflict of interest later arose between Chau and Lee, who each obtained separate replacement counsel.

Tatro & Zamoyski initiated foreclosure pursuant to the deed of trust, to collect the substantial unpaid fees. Chau and Lee initiated an action to restrain the foreclosure, claiming negligence, legal malpractice and breach of fiduciary duty. Tatro & Zamoyski agreed to refrain from foreclosure, but cross-complained for unpaid fees. There were multiple amendments to Chau and Lee's complaint.

Steven G. Amundson successfully resolved the matter in complete favor of the firm's client, Tatro & Zamoyski. Chau and Lee agreed to pay all unpaid fees and costs, plus accrued interest. Chau and Lee withdrew all defenses as against the promissory note and deed of trust in order to permit Tatro & Zamoyski to collect fees through foreclosure. Chau and Lee dismissed their complaint with prejudice.

White Oliver Obtained Defense Verdict in Breach of Fiduciary Duty

Yarpezeshkan v. Sullivan Hill Lewin Rez & Engle,
San Diego Superior Court Case No. GIC 850949

Daniel M. White and Steven G. Amundson tried this complex highly contested case in 2008. The case arose out of the representation of Yarpezeshkan and others by defendant law firm in underlying securities fraud litigation, which itself was lengthy, highly contested and culminated in trial. The procedures in the underlying action were complex, including a bankruptcy of the corporate defendant formed by Yarpezeshkan in which plaintiff investors were minority shareholders. The underlying matter settled after the jury had reached a verdict but before the verdict had been disclosed.

Yarpezeshkan's complaint ultimately only went to trial on a breach of fiduciary duty cause of action as against the law firm. Yarpezeshkan claimed overbilling in the underlying case. Yarpezeshkan also sought disgorgement of fees which had actually been paid, not only by himself, but also those paid by other entities in the underlying lawsuit. The defenses against Yarpezeshkan's claims for disgorgement included, inter alia, lack of standing by Yarpezeshkan to seek fees paid by the corporate defendant in the underlying action, a bar as a result of the bankruptcy of the corporate defendant in the underlying action, a bar by the statute of limitations, and that Yarpezeshkan's effort to recover attorney's fees paid by the corporate defendant in the underlying action would be an improper derivative action. The law firm cross-complained for unpaid fees owing from the representation in the underlying action.

A defense verdict on behalf of the law firm was obtained as against Yarpezeshkan's claim. The law firm recovered a portion of the fees sought on its cross-complaint.

Business Litigation

White Oliver Obtains Summary Judgement in Unfair Business Practices Case

Hughes v. FrontRange Solutions,
San Diego Superior Court Case No. GIC856446

Steven G. Amundson represented FrontRange, a distributor of computer software products. Distribution was accomplished in part through independent contractors. Hughes alleged in a state court action that there were multiple violations of the federal Telephone Consumer Protection Act, which violations were in turn also claimed to be unfair business practices in violation of California Business & Professions Code section 17200.

Plaintiff alleged these violations resulted from receipt of multiple repeated unsolicited facsimile and electronic advertisements of FrontRange products, each of which was separately actionable. It was alleged in the alternative that these were transmitted by FrontRange or by a third party distributor alleged to be an actual or ostensible agent of FrontRange.

It was established in a motion for summary judgment on behalf of FrontRange that Hughes had no factual support for his allegations that the electronic transmittals of advertisements for FrontRange products were transmitted by FrontRange. FrontRange further established that the distributor was neither the actual or ostensible agent of FrontRange. Hughes opposed the motion on multiple grounds. The court found there was no material evidence FrontFrange transmitted the advertisements, or that the distributor was its agent. Because the court determined that plaintiff could not establish violations of the Telephone Consumer Protection Act by FrontRange, the unfair business practices cause of action based on such alleged violations also failed.

White, Oliver successful in return of defective luxury yacht for full price, plus ancillary expenses

In a confidential settlement partner Daniel M. White and associate Adam Shiells successfully negotiated the return of a defective luxury yacht to its manufacturer.  The seven figure price of the vessel and ancillary expenses were returned to the purchaser.

Sexual Abuse Defense

White Oliver Obtains Dismissal in Complex Abuse Case

John Roe 54 v. Doe 1, et al.,
Los Angeles Superior Court Case No. 37-2009-00102770-CU-PO-CTL

The plaintiff filed suit for alleged sexual abuse that occurred in 1964 in Vista, California. Among other defendants, the plaintiff named a diocese located in Ohio where the alleged perpetrator previously served as a priest.

On behalf of the out-of-state diocese, Susan Oliver of White Oliver filed a motion to quash service of summons for lack of personal jurisdiction. The court found that:
· The out-of-state diocese did not have sufficient contacts with California to subject it to the court's general jurisdiction;
· The out-of-state diocese did not purposefully avail itself of California benefits because it did not target or aim its conduct at California and therefore was not subject to the specific jurisdiction of the court.

As such, the court granted the motion to quash and dismissed the out-of-state diocese from the case.

Wrongful Death

White Oliver Negotiates Favorable Settlement in Wrongful Death Case

Johnson v. Executive Protection Agency, et al.,
United States District Court For The Southern District of California
Case No. 07cv0570JAH (AJB)

Plaintiffs sued in Federal Court as the parents and personal representatives of their adult son, who died after struggling with and being arrested by police officers. Our client was the commercial landowner of an apartment complex located at or near the location where the arrest took place. Plaintiffs named our client as a defendant under a theory of negligent hiring, supervision, and/or retention of the security guards based upon the allegation that these security guards assisted the police officers in effectuating the arrest of the decedent and contributed to the cause of his demise. Following some discovery and facing the possibility of a motion for summary judgment, plaintiff agreed to a nuisance value settlement with our client despite prior demands in the multiple million dollar range.

White Oliver Obtains Settlement in Wrongful Death Matter

Guerrero v. Stack et al.,
San Diego Superior Court Case No. 37-2007-00072518-CU-PA-CTL,
Consolidated with 37-2007-00077594-CU-PA-CTL

This is a wrongful death matter, involving multiple plaintiffs and multiple defendants. Specifically, this case arises out of a multi-vehicle collision, which was triggered by the stalling and abandonment of 1994 Toyota Corolla at the merge of State Route 163 and Interstate 15. Plaintiffs asserted a products liability based on negligence and strict product liability theories of recovery as against defendant Welltech Auto Parts, generally alleging that the alternator installed in the 1994 Toyota Corolla prior to the crash was defective, "which was a factor in said vehicle breaking down and coming to rest on the freeway at night." Welltech installed the rebuilt alternator in the vehicle prior to the accident.

A motion for summary judgment was filed by Welltech on the grounds that Plaintiffs did not possess, nor could they reasonably obtain, needed evidence to establish two essential elements: (1) the alternator was defective; and (2) causation.

The hearing was set for February 5, 2010. The case settled just prior to Plaintiffs' filing of their Opposition. Plaintiffs settled for a nominal amount.

White Oliver Successfully Obtains Summary Judgement in Wrongful Death Matter

Ritter v. Montiel,
San Diego Superior Court Case No. 37-2007-00080052-CU-PA-NC

This was a wrongful death action brought by the three adult children of a man killed in a motorcycle-pickup truck collision. Steven G. Amundson represented defendant Montiel, a resident of Idaho, who had left the pickup truck with her step-daughter in San Diego County because of mechanical problems during a visit. The pickup truck was being driven by a friend of the step- daughter who Montiel did not know, with the step-daughter's permission, at the time of the accident. The action as against truck owner Montiel alleged negligence for wrongful death, and negligent entrustment. The step-daughter and driver were also defendants.

Discovery established that there was no evidence to support the claim that the driver of the pickup truck was operating it with either express or implied permission of Montiel. The evidence also established that there were no facts to form a basis for imputing liability to Montiel under California's "permissive use" statute, Vehicle Code sections 17150 and 17151. This was set forth as grounds for summary judgment in favor of Montiel. It was further demonstrated in support of the motion that plaintiffs could not establish their claim for negligent entrustment as a matter of law. They had no evidence to establish the essential elements that Montiel permitted the driver to use the vehicle, or that Montiel knew or should have known that the driver was unfit to drive a vehicle because he was under the influence of narcotics. Plaintiffs opposed the motion. Summary judgment was granted as to Montiel. The case went to trial as against the two other defendants and a multi-million dollar verdict was returned.

Personal Injury

White Oliver Obtains Dismissal in Alleged Brain Injury Case

Plavnicky v. Boy Scouts of America,
San Diego Superior Court Case No. GIE035654

This was an alleged brain injury case asserted by a young man who was injured following a bike riding accident occurring at a Boy Scout camp owned and operated by the San Diego Imperial Council of the Boy Scouts of America. Plaintiff was returning from an overnight biking and camping expedition when the front wheel came off the camp-provided bike, which was sold by co- defendant, Giant Bicycles. The plaintiff tumbled head first through the handlebars of the bike, sustaining severe injuries, including loss of consciousness, a severe concussion, broken teeth and bones, a broken nose and alleged brain injury.

In 2009, White Oliver Amundson & Gallagher filed Motions for Summary Judgment on behalf of the San Diego Imperial Council and the Boy Scouts of America on the basis of the assumption of the risk defense and other defenses. Faced with these motions, plaintiff dismissed his claims against these entities. The case proceeded against co-defendant Giant Bicycles. This matter was assigned to Judge Laura Halgren of the San Diego Superior Court.

Plaintiff was represented by Tom Shpall of Rosenberg, Shpall & Associates, 401 West B Street, Suite 2209, San Diego, CA 92101; Giant Bicycles was represented by Sheldon Warren of The Law Offices of Sheldon J. Warren, Post Office Box 30220, Long Beach, CA 90853; and the Boy Scouts of America and the San Diego Imperial Council were represented by Susan L. Oliver of White, Oliver, Amundson & Gallagher, 550 West C Street, Suite 950, San Diego, CA 92101.

White Oliver Obtains Favorable Settlement in Personal Injury Case
for Vacation Resort

Thompson v. Namale West,
San Diego Superior Court Case No. 37-2007-00066481-CU-PO-CTL

This was a personal injury action filed in San Diego, California, by a woman alleging that she sustained severe injuries following a fall from a horse at a resort in Fiji. White Oliver, Amundson & Gallagher represented Defendant Namale West, a luxury resort in Fiji and related defendants, who owned and operated the resort and who reside in San Diego. Plaintiff elected to participate in horseback riding activities at the resort. which involved a trail ride led by an experienced guide. During the ride, the horse on which plaintiff was riding suddenly reared and then bolted, ultimately throwing plaintiff to the ground. Immediately following the event, plaintiff was treated for a laceration across the bridge of her nose, some minor scrapes and bruises and a sprained arm. Shortly before the statute of limitations expired, plaintiff sued the resort and its owners and operators, alleging that the horse was dangerous with known violent propensities and that she had sustained severe injuries, including brain damage, a broken nose leading to multiple sinus and other problems, severe neck and back problems, leg and arm injuries, and a host of other maladies. Defendants filed a motion for forum non conveniens, which was denied. The case was then litigated. When extensive evidence was uncovered regarding plaintiff's pre-existing injuries and prior similar damages claims, the case was settled for a less than nuisance value.

Plaintiff was represented by Susan Hargrove of the Law Offices of Susan Hargrove, 4640 Admiralty Way, Suite 500, Marina Del Rey, CA 90292. Namale West, Robbins Research International and the other defendant entities were represented by Susan L. Oliver of White, Oliver, Amundson & Gallagher, 550 West C Street, Suite 950, San Diego, CA 92101. The case was assigned to Judge Richard E. L. Strauss of the San Diego Superior Court. The case resolved in early 2010.

White Oliver Negotiates Favorable Settlement in Personal Injury Case

Ramirez v. Vanderslice,
United States District Court, Western District of Texas, Austin Division,
Case No. A08CA 907LY

Efren Suaste Ramirez, a Mexican national illegally in the United States, was rendered quadriplegic in a pool diving accident on December 17, 2008 in Austin, Texas. The pool was near a house, both of which were located on property owned by John and Camille Vanderslice. The property was purchased with the thought of using it as a staging area for materials to be used in the development of a project on the north shore of Lake Travers by Mr. Vanderslice and his business associates. One of Mr. Vanderslice's business associates had agreed to allow Mr. Ramirez and some other workers to reside in the housing during the development of the adjacent project. The house on the property was in general disrepair and the pool was dirty with algae in it. The plaintiff's theory of liability was that the pool was poorly maintained and that the property was not well lit. Plaintiff's counsel alleged that Mr. Ramirez did a shallow dive across the pool and struck the circular "wedding cake" stairs at the side of the pool nearest the house, suffering a gross fracture at C-6, which left him a quadriplegic. Although the case was venued in Austin, Texas, Daniel M. White and Susan L. Oliver were retained on behalf of the Vanderslices to assist in working up the case for mediation and/or trial due to the severe nature of the injuries and the significant damages alleged.

White Oliver Amundson & Gallagher argued that the plaintiff faced significant comparative fault as he had been drinking on the night of the incident shortly before his unfortunate dive into the shallow swimming pool. Additionally, because Mr. Ramirez was a Mexican national living illegally in the United States, defense counsel argued that plaintiff's lost earnings and future lost income claims should be precluded under Texas law, as well as under the federal preemption defense first enunciated in Hoffman Plastic Compounds, Inc. v. MLRB (2002) 535 U.S. 137. Challenges to Mr. Ramirez' damage claims were also made on the basis of the Unlawful Acts Doctrine recognized by the Texas courts.

The case was resolved via mediation occurring in Texas in the fall of 2009. The amount paid in settlement by the Vanderslice defendants was well below nuisance value. Counsel for the plaintiff was Mark Blackburn, 600 Congress Avenue, Suite 2600, Austin, TX 78701-3351. Defense counsel for John and Camille Vanderslice were John H. Barr, Esq., Burt, Barr & Associates, LLP, P.O. Box 223667, Dallas, TX 75222 and Daniel M. White and Susan L. Oliver of White, Oliver, Amundson & Gallagher, 550 West C Street, Suite 950, San Diego, CA 92101.

White Oliver Successfully Settles Personal Injury Case for Token Amount of Original Claim

Xenophon Maroudis and Mary Maroudis v. Firehouse Brewing Co. and Brian Scott,
San Diego Superior Court Case No. 37-2008-0057490-CU-PA-NC

This case is a personal injury matter arising out of a roll over automobile accident on the Interstate15. Plaintiff alleged that Defendant Brian Scott crossed over into his lane, impacting the right side of his vehicle, causing his vehicle to veer out of control and roll over. Defendant Scott claimed that Mr. Maroudis crossed over into his lane and impacted the left side of his vehicle.

Mr. Maroudis suffered a de-gloving injury to his right arm. He also claimed back and knee injury. Ms. Maroudis asserted a loss of consortium claim. There was an eye witness and other physical evidence indicating that Mr. Maroudis made an unsafe lane change. Plaintiffs' initial demand was for a significant seven-figure number. The case ultimately settled collectively for $265,251.00.

Settled on April 20, 2010.

White, Oliver successful in Motion for Summary Judgment in Personal Injury Case

Susan L. Oliver represented an owner of a restaurant located in a strip mall in San Diego.  The restaurant owner encouraged car clubs to hold rallies in the parking lot of the strip mall.  During one of these car rallies, a fight occurred between two participants in the rally, resulting in serious injuries to one of them – the plaintiff.  The plaintiff sued the restaurant owner, but Ms. Oliver was successful in eliminating the plaintiff's claims on a motion for summary judgment.  She argued that the restaurant owner had no duty to the plaintiff in the absence of prior similar violent acts, and the trial court agreed.  Ms. Oliver then pursued the recovery of substantial costs from the plaintiff on behalf of her client.

Premise Liability

White Oliver Successfully Resolves Complaint and Cross-Complaint in Complex Slip and Fall Case

Delgado v. the Basset Family Partnership, LP dba the Balboa Mesa Center, the Daughters of St. Paul, Inc.,
San Diego Superior Court Case No. 37-2009-00091244-CU-PO-CTL

In this lawsuit, White Oliver Amundson & Gallagher's client, the Daughters of St. Paul, ran a bookstore in the Balboa Mesa Center development. The Daughters, along with the Center, were sued by a former employee who tripped and fell on a sidewalk that was part of the development. The Center then filed a cross-complaint against the Daughters for express indemnity arising under the lease agreement between them.

White Oliver Amundson & Gallagher successfully resolved the complaint and the cross- complaint on motions for summary judgment. The former employee dismissed her lawsuit against the Daughters upon White Oliver Amundson & Gallagher's filing of its motion, and the Court granted White Oliver Amundson & Gallagher's motion with respect to the Center, finding that on the facts of the case, the Daughters owed the Center no duty to indemnify it against the plaintiff's claims. White Oliver Amundson & Gallagher's cost-effective resolution of the case, including a hard-fought and complex indemnity issue, was a significant success for White Oliver Amundson & Gallagher and the Daughters. White Oliver Amundson & Gallagher was also able to recoup attorney's fees from the Center based on an attorney's fees provision in the lease.

White Oliver Achieves Defense Verdict in Hospitality Case

Brown v. Atlas-Kona Kai Hotel,
San Diego Superior Court Case No. GIC877052

On March 22, 2006, Michael Ponczocha collapsed from cardiac arrest after using the exercise facilities at the Kona Kai Resort in San Diego, California, which is owned and operated by Atlas-Kona Kai, LLC. Immediately following his collapse, the hotel immediately summoned emergency services, and paramedics arrived promptly thereafter on the scene. While awaiting the arrival of emergency personnel, resort staff cared for and administered CPR to Mr. Ponczocha. Unfortunately, he was pronounced dead later that evening.

Plaintiff Lisa Brown filed her complaint against Atlas-Kona Kai as Mr. Ponczocha's spouse and as the administrator of his estate, alleging causes of action for negligence, premises liability, and failure to warn. Ms. Brown sought to hold Atlas-Kona Kai liable for allegedly failing to prevent Mr. Ponczocha's death from cardiac arrest. In support of each of her causes of action, Ms. Brown generally alleged that Atlas-Kona Kai failed to provide the following:
· A reasonably safe place for persons to use a health spa and workout facility;
· Permitted dangerous and unsafe conditions to exist on the premises;
· Failed to warn of these alleged dangerous conditions.

Ms. Brown alleged that Atlas-Kona Kai failed to have appropriate safety equipment on the premises including an automated external defibrillator ("AED"), failed to instruct personnel in appropriate safety procedures, and failed to have staff persons reasonably knowledgeable about appropriate safety procedures.

Defendant Atlas-Kona Kai brought its motion for summary judgment on the grounds that a fitness facility owner that promptly summons emergency service when a patron suffers a heart attack discharged its duty, and the uncontroverted evidence was that emergency services were promptly summoned to the scene within moments after Mr. Ponczocha fell to the floor.

The court granted the motion for summary judgment of Atlas-Kona Kai finding that Atlas-Kona Kai owed no duty as a matter of law to prevent the alleged injury as Mr. Ponczocha's cardiac arrest was a risk inherent in fitness facilities. The court further found that Atlas-Kona Kai did not increase the risk that Mr. Ponczocha would suffer a heart attack, and owed no duty to prevent the severe consequences of this injury.

Judgment was entered in favor of Atlas-Kona Kai. The plaintiff appealed the judgment to the Fourth District Court of Appeal. The plaintiff argued on appeal that as an operator of a health club, Atlas-Kona Kai also had a duty to have emergency equipment such as AED's on hand and to train its staff on how to respond to foreseeable emergencies such as cardiac arrest. In an unpublished decision, the Court of Appeal affirmed the granting of the motion for summary judgment, finding that her claim was barred by the primary assumption of the risk doctrine as set forth in Rostai v. Neste Enterprises, (2006) 138 Cal.App.4th 326, 331. The court further found that the failure of Atlas-Kona Kai to install AEDs, or have emergency plans in place, did not increase the risk of harm Mr. Ponczocha was exposed to while exercising at the facility.

Real Estate Litigation

White Oliver Obtains Favorable Judgment for Scout Camp Property Boundaries

San Diego Imperial Council, Boy Scouts of America v. Baldwin, et al.,
San Diego Superior Court Case No. GIN 056714

In this 2008 trial, Steven G. Amundson sought to quiet title and confirm boundary lines in favor of the San Diego Imperial Council, Boy Scouts of America ("BSA"), arising out of a decades long dispute concerning the boundaries of the BSA's Mataguay Boy Scout Camp in San Diego County.

Much of the property on which Camp Mataguay is located was originally one of the original Spanish land grants, with boundaries described as "Rancho" lines. The Boy Scouts first obtained a substantial portion of the parcel by grant deed in 1956. Since then, there had been continuing issues and multiple lawsuits with owners of adjacent parcels. Multiple area surveys were conducted over the years, including several by the Bureau of Land Management dating back to 1915, and earlier dating to 1884. Multiple parcels and multiple boundary lines were in issue. The case centered on competing expert testimony of land surveyors, and the surveyor retained by the BSA performed an independent survey.

The judgment obtained resolved all boundary issues in favor of the BSA. The Court ordered that the Record of Survey performed on behalf of the BSA accurately described all boundaries in issue. The court quieted the BSA's title to its parcels as requested.

Construction Defect

White Oliver Obtains Favorable Settlement in Cross-Complaint Case

Balfour Beatty/Ortiz Enterprises v. Metropolitan Transit Systems,
Imperial County Superior Court Case No. ECU03524 (transferred from County of San Diego Superior Court case number GIC868963

Robert E. Gallagher, Susan L. Oliver and Beth M. Mercaldo successfully defended their client, Washington Group International. Plaintiff Balfour Beatty Ortiz Enterprises ("BBO") brought suit against our client, Metropolitan Transit System ("MTS") for breach of contract, and claimed damages stemming from construction of the extension of the San Diego Trolley from San Diego State University to La Mesa. BBO alleged that MTS breached its contract by:
· Failing to provide adequate access to the work;
· Failing to provide coordinated design to construct the project;
· Failing to compensate BBO for additional costs incurred to overcome deficient design and other impacts;
· Directing BBO to accelerate its work without compensating BBO;
· Directing BBO to perform significant amounts of extra work without compensation and other damages.

MTS subsequently cross-complained against the project construction management firm, Washington Group International ("WGI"), and the architects and engineers who designed the project, Mission Valley Designers. MTS claimed that WGI and Mission Valley Designers were negligent, the design work and construction management fell below the standard of care in the industry, and owed a duty to indemnify MTS for any negligent conduct on the part of the designers, engineers, and construction management firms.

After a 13-week jury trial in the Superior Court for the County of Imperial, a jury returned a verdict against MTS in a sum in excess of $9 million, and awarded a defense verdict to both WGI and Mission Valley Designers on the cross-complaint of MTS. The case subsequently settled while on appeal.

Tax Litigation

White, Oliver successful in lowering client's obligation to IRS by $15.24 million

In a case tried before the United States Tax Court, partner Daniel M. White and James L. Kelly of Reno, Nevada soundly defeated the Internal Revenue Service.  The IRS claimed taxes and penalties of $17.9 million against a pioneer Nevada family following the sale of 2,500 acres of pristine ranch land above South Lake Tahoe to the United States Forest Service. The judgment - including a very rare shifting of the burden of proof from the taxpayers to the IRS and denial of all penalties - resulted in net tax due of $2.66 million for a savings of $15.24 million.

Breach of Contract

White, Oliver successful in recovering six-figure attorneys' fees from client insurer

In a JAMS binding arbitration entitled White, Oliver & Amundson v Travelers Insurance, partners Daniel M. White and Susan L. Oliver recovered over $450,000 in unpaid fees from the respondent insurer.  Travelers advised the firm that it would serve as Cumis counsel to its insured and thereafter took the position that the firm must follow the Travelers guidelines for panel counsel.  The firm refused to do so and Travelers withheld payment.  The JAMS arbitrator based the award on quantum meruit finding that the fee restrictions of California Civil Code Section 2860 were inapplicable to the insurer because of its breach of its duties to the firm and its insured.