Following a 2-week trial, a Torrance jury returned a defense verdict on July 19, 2022 for our client in a personal injury case arising out of a 2018 accident in a Redondo Beach intersection.  The plaintiff claimed that she was lawfully in the crosswalk and our 19-year-old driver failed to yield, striking plaintiff with her SUV and causing injuries to her shoulder and knee, necessitating arthroscopic shoulder and knee replacement surgery in the future.  Plaintiff also claimed significant emotional issues, including PTSD, which would require lifelong care, and her counsel asked the jury to award $3,200,000 in damages.  During trial, DAR partner Bjorn Green exposed numerous inconsistencies in plaintiff’s version of events, arguing that plaintiff had run into the intersection without looking and was responsible for her own injuries.  The jury returned a 10-2 defense verdict following less than 2 hours of deliberation.  Prior to trial, plaintiff’s counsel had rejected a $110,000 settlement offer.

Jim Weixel, of the firm’s Walnut Creek office, obtained a reversal of a summary judgment against the firm’s clients in a long-running landslide case in Contra Costa County.  A neighboring landowner argued, based on a declaration from his geotechnical engineer, that it was undisputed his property was not within the slide mass (the area of land subject to moving during a landslide) and thus could not have damaged the clients’ property.  A declaration from defense geotech found clear evidence of land movement on the neighbor’s property, including significant deformations of the driveway and sidewalk, thus proving the neighbor’s property was within the slide mass.  In reversing summary judgment for the neighbor, the Court of Appeal held that the competing declaration from the firm’s geotech created a material issue of fact as to the role the neighbor played in causing the landslide.

The Court relied largely on a principle it had followed in its previous decision in the same case:  if a moving party includes a fact in its separate statement, the party cannot later treat that fact as immaterial when the opposing party puts forth contradicting evidence.  The neighbor had done so here, resting his motion on the premise that his expert’s declaration had shown the property was not in the slide mass, but then claiming that point was immaterial after Weixel’s expert provided evidence to the contrary.

Not only did the opinion result in a reversal of the summary judgment, but it also vacated an award of costs of almost $45,000 against the firm’s clients.

The decision is Insalaco v. Padilla and can be read here.  Publication request pending.

DAR Attorneys Eric Brenneman and Zachary Hamilton succeeded in the Ninth Circuit Court of Appeal in a case involving arbitrator qualifications under a reinsurance certificate.  In Public Risk Innovation, Solutions, and Management v. AmTrust Financial Services, Inc., the Court of Appeal considered whether to affirm the district court’s rulings that (1) service with a joint powers authority properly qualified a party arbitrator under the terms of the contract; and (2) the time is of the essence clause does not apply when a party appoints its party arbitrator within the time specified, even though that individual is ultimately not qualified to serve.  Reinsurer AmTrust argued that the Certificate required arbitrators to be disinterred current or former officials of property or casualty insurance or reinsurance companies and a JPA was not insurance as a matter of law.  The appellate court agreed with the ceding company PRISM that, although JPA coverage is not “insurance,” the court must apply the terms used in the contract, which described it as such.  Moreover, allowing one party to pick a party arbitrator from its segment of the coverage industry was consistent with the general purpose of waiving litigation in favor of arbitration before a three-arbitrator panel.  The Court of Appeal also reasoned that, even though PRISM’s party arbitrator ultimately did not qualify to serve, the time is of the essence clause does not apply when a party acts in good faith within the time specified. 

The firm delivered Farmers Group^TM insurer Fire Insurance Exchange reversal of a demurrer overrule that prompted dismissal of several companion bad faith coverage cases arising from the Valley Fire in Westmoreland v. Fire Insurance Exchange (2021) 73 Cal.App.5^th 269, review denied March 9, 2022.  David Ring briefed and argued the appeal with help from Paul Peters and John Brydon.  At issue was the meaning of 2015 Insurance Code language concerning indemnification of homeowners who relocate after a total loss that the Legislature twice since sought to clarify by amendment.  

DAR attorneys Randy Moss and Lisa Pan scored another victory on summary judgment in a first-party bad faith lawsuit brought by an insured for water damage to a multi-unit residential building she owned.  While the claim was pending the insurer requested five times that the insured submit to an examination under oath.  She responded to the first demand contending that she would not sit for examination until she had an opportunity to retain counsel.  But after she retained counsel, she never offered to schedule the examination.  She ignored the four additional requests for examination and filed suit without ever submitting to the examination.  After discovery closed and trial was continued, DAR moved for summary judgment, arguing that submitting to the examination was both a condition precedent to coverage and to suit.  The motion was accompanied by a six-figure CCP Section 998 offer, which the insured and her counsel rejected on the belief they could create an issue of fact and force the matter to trial.  The court granted the motion for summary judgment, rejecting the insured’s belated medical excuses, and finding that the insured’s dissatisfaction with the handling of her claim was not an excuse to avoid appearing for an EUO, that the multiple requests were reasonable, and that the insured was in breach of the policy condition.  Judgment was entered for the carrier.

By:  Kate Friend, Of Counsel, Demler, Armstrong & Rowland

Last week the California Department of Public Health (the “CDPH”) announced that effective February 16 it will lift the universal indoor mask mandate.  Mask mandates are also expiring on the same day in a number of jurisdictions that enacted local indoor mask mandates, including:  in the Bay Area and the northern part of California:  Alameda, Contra Costa, Marin, Monterey, Napa, San Benito, San Francisco, San Luis Obispo, San Mateo, Santa Cruz, Solano, Sonoma, and the City of Berkeley, and in Southern California in: San Diego, Orange, and Imperial Counties.  Some local jurisdictions including Los Angeles, Mendocino Santa Barbara, Santa Clara and Ventura Counties have not yet announced lifting of local mask mandates.

However, the expiration of “universal mask mandates” is not the same thing as the expiration of all mask mandates.  There are some big caveats.  All employers should bear in mind that masks are still required for:

• Unvaccinated individuals over the age of 2 (must continue to mask at all indoor public spaces);
• Unvaccinated employees (must wear face masks while at work or in work vehicles)
• Employees who come into close contact with a person with COVID-19, but are eligible to return to work under Cal-OSHA’s Emergency Temporary Standards (must mask at work until 14 days have passed since the date of close contact regardless of vaccination status)

Additionally, regardless of vaccination status masks are still required for all persons over the age of 2:

• On public transit
• In transportation hubs,
• In taxis and rideshare vehicles
• Indoors in K-12 schools
• Indoor childcare settings;
• Emergency shelters, cooling and heating centers;
• Correctional facilities and detention centers;
• Healthcare settings;
• Homeless shelters;
• Long term care settings;
• Adult and senior care facilities

Because the rules may change quickly, and vary by local jurisdiction, employers and persons operating venues open to the public should review guidance from their local health departments, as well as guidance from Cal-OSHA and the CDPH.

The Emergency Temporary Standards can be found here:  https://www.dir.ca.gov/dosh/coronavirus/ETS.html

The CDPH Guidance can be found here:  https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx