I have listed below a few of the many motions and briefs which I have written. However, they show the range of issues with which I have dealt and the quality of my writing. You can obtain copies of any of these items by filling out the request form below; I will be happy send them to you.
Please feel free to use these briefs. However, I caution you to give individual consideration to the facts of your case and to make sure that the cases cited remain good law. In addition, you should check the Articles section for other materials regarding your issue. I will be happy to consult with you about these - and any other - legal issues in your practice.
Case Against a Bakersfield Resident Arising Out of a Bakersfield Accident Was Properly Filed in Los Angeles Survine v. Sanders - LASC case no. BC 343042 Opposition to Motion to Change Venue on Ground of Convenience of Witnesses & Minute Order (DN 4401-001) Opposition to Petition for Writ of Mandate (DN 4401-002) Opposition to Motion to Change Venue on Ground of Improper Venue (DN 4401-003)
Plaintiff sustain massive brain injury as a result of being struck by an automobile while she was crossing the street. The accident took place in Bakersfield; both the plaintiff and the defendant resided there. Plaintiff filed her action in Los Angeles after her family moved her there. The defense moved to change venue to Bakersfield, both on the ground that venue in Los Angeles was improper and on the ground that the convenience of witnesses would be promoted by the transfer. The judge denied both motions; the Court of Appeal declined to issue a writ. Board & Care Facility Has A Duty to Protect a Mentally Ill Resident From His Own Suicidal Impulses Gerchik v. Villa Stanley Fast - LASC case no. BC 266403 Opposition to Motion for Summary Judgment (DN 4384-001) Trial brief (DN 4384-002)
The plaintiff - a resident in a board & care facility owned by the defendants - had a history of mental illness and suicide attempts. Defendants failed to supervise his anti-psychotic medications and permitted unrestricted access to the roof of the building. As a result, plaintiff attempted sucide by jumping off the roof. The court held that the facility had a duty to use reasonable care to prevent the suicide attempt.
Plaintiff's Suicide As Comparative Negligence Gerchik v. Villa Stanley East - LASC case no. BC 266403 Motion in Limine & Reply (DN 4384-003) Trial brief & Reply (DN 4384-004)
The plaintiff - a resident in a board & care facility owned by the defendants - attempted suicide by jumping off the roof of the building. This brief discusses the substantial authority outside of California that where he has a duty to prevent a suicide the defendant cannot claim that the suicide - the contingency he was obliged to prevent -constitutes comparative negligence.
Admissibility of Quantified Electroencephalgraph (QEEG) Tests Liebert v. San Jose Sharks - LASC case no. 110710523 (2000) Trial brief (DN 4364-001)
The plaintiff was hit on the head by an errant hockey puck while attending a Kings-Sharks game. An MRI and other usual tests were negative for brain injury. A more recent technique - the computerized analysis of EEG data - showed brain injury. The defense argued that the tests were not generally accepted and should be excluded under the Kelly-Frye standard. The court held that the jury could consider the QEEG test results.
Assumption of Risk as a Complete Defense in a Sports Bystander Case Liebert v. San Jose Sharks - LASC case no. BC210523 (2000) Memorandum of Points and Authorities on defense motion for summary judgment (DN 4364-002) Proposed Order on defense motion for summary judgment (DN 4364-003)
The plaintiff was hit on the head by an errant hockey puck while attending a Kings-Sharks game. At the time of the injury, play had been stopped following a goal; a frustrated player hit the puck into the stands. The defense contended that the plaintiff assumed the risk of injury. The court held that the possibility of being struck while the game was stopped was not a risk inherent in the sport and therefore rejected the defense.
Determining the Proper Hourly Rate for independent (Cumis) Counsel Chau v. 20th Century Insurance Company (arbitration) Trial Bnef (DN 4328-001)
Civil Code § 2860(c) provides that an insurer need not pay independent counsel at an hourly rates above those which it actually pays to attorneys retained by it in the ordinary course of business in the defense of similar actions in the community where the clam arose or is being defended. However, many insurers pay panel defense counsel at flat or blended hourly rates which do not take into account the complexity of an individual case or the experience and skill of an individual attorney. This brief argues that in a Cumis case the rates for panel defense counsel must be "unblended" to yield individualized hourly rates. Entitlement of Independent (Cumis) Counsel to Attorneys Fees for Fee Arbitration Chau v. 20th Century Insurance Company (arbitration) Trial Brief (DN 4328-002)
Although independent (Cumis) fee arbitrations ought to be speedy and inexpensive, an insurer which wishes to "punish" independent counsel can use the arbitration to make that representation prohibitively expensive, especially when counsel is compensated as the low hourly rates that the insurer pay to its panel defense counsel. This brief argues that independent counsel should be entitled to attorneys fees for the time spent in the arbitration. Liability of an Insurer for Loss of Evidence Which Prejudices the Defense of its Insured Choi v. Toyota - LASC case no. BC 246 938 (1997) Memorandum of Point and Authorities on defense motion for summary judgment (DN 4328-003)
The insured driver lost control of a Toyota van. He, along with several passengers, were killed; other passengers were injured. The accident was due either to driver error or to a defective tire which suffered a tread separation. The insured driver's estate advance the latter theory as its defense. However, after the accident the insurance company took possession of the tire from the CHP. It destroyed or lost the tire before any experts could examine it. The insured's estate cross-complained against the insurer, arguing that the loss of the tire had prejudiced its defense and thus the insurer had breached its duty to defend. The insurer filed a motion for summary judgment, arguing that it had no duty to preserve the tire. The trial court denied the motion.
This case settled six months before the Supreme Court largely abolished independent tort actions forspohation of evidence. Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1 (1998); Temple Community Hospital v. Superior Court, 20 Ca64th 464 (1999). However, in Coprich v. Superior Court, 80 Cal'App.ath 1081 (2000), the Court of Appeal allowed a claim for spoliation based upon a breach of a contract to preserve evidence. Arguably, the obligation to preserve evidence needed for the defense of the insured may be an implied term of a liability insurance policy.
Burden of Proof on Damages When an Insurer for Loses Evidence Which Prejudices the Defense of its Insured Choi v. Toyota - LASC Lase no. SC 246 938 (1997) Trial Brief (DN 4328-004)
The insured driver lost control of a Toyota van. He, along with several passengers, were killed; other passengers were injured. The accident was due either to driver error or to a defective tire which suffered a tread separation. The insured driver's estate advance the latter theory as its defense. However, after the accident the insurance company took possession of the tire from the CHP. It destroyed or lost the tire before any experts could examine it. The insured's estate cross-complained against the insurer, arguing that the loss of the tire had prejudiced its defense and thus the insurer had breached its duty to defend.
Since the tire was missing, it was impossible to prove that - if the insurer not lost it - what its effect would have been on the trial. Thus, the allocation of the burden of was crucial; the party having that burden would necessarily lose.
This case settled six months before the Supreme Court largely abolished independent tort actions forspohation of evidence. Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1 (1998); Temple Community Hospital v. Superior Court, 20 Ca64th 464 (1999). In Coprch v. Superior Court, 80 Cal.App.4th 1081 (2000), the Court of Appeal allowed a claim for spoliation based upon a breach of a contract to preserve evidence. However, it opined - but without analysis - that the insured bore the burden of proof of establishing the effect of the missing evidence. Propriety of a Protective Order Prohibiting Dissemination of Documents to Counsel for Certain Parties Lockett v. Tutor-Saliba Corporation - LASC case no. IC 014157 (2001) Brief (DN 4372-001)
Plaintiffs were passengers in an automobile which hit a wall built by defendants. Plaintiffs contended that defendants should have put reflective warning signs on the wall to make it more visible. Defendants' insurer took a recorded statement from the project safety manager. When defense counsel failed to file timely object to a request to produce the statement propounded by one plaintiff, the Court ordered the statement produced. Defendants then filed a motion for protective order, asking that only counsel for that particular plaintiff he allowed to see the statement. The court denied the motion.
Validity of a Pre-Injury Release In Favor of a Common Carrier Pickavance v. Yosemite Concession Services - Fresno Superior Court case no. 01CECG02159 (2002) Trial Brief (DN 4371-001)
Plaintiff was injured while on a mule ride at Yosemite National Park. The defendant contended that her clam was barred by the terms of a release which plaintiff signed before she began the ride. However, a mule ride is a common carrier which may not limit its liability; this, the release was unenforceable as contrary to public policy.
The Jury Could Consider Evidence That the Plaintiff Was Qualified for Future Promotions - Whether or Not She Would Actually Receive Them - in Assessing Loss of Future Earnings Pickavance v. Yosemite Concession Services - Fresno Superior Court case no. 01CECGO2159 (2002) Trial Brief (DN 4371-002)
At the time of the accident, the plaintiff held a low-paying entry position. However, her superiors testified that she was doing well and was likely to receive promotions - and substantial pay raises - in the future. The defense argued that this testimony was speculative and that any loss of earnings could be based only on her present pay rate. This brief argued that the just was entitled to consider the evidence of future increases.
