Sacramento Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)

The court may decide to disregard a witness' testimony because untrustworthy in light of inconsistencies and vagueness; then, weighing the remaining evidence, the motion for new trial should be granted if the verdict clearly cannot stand without that witness's testimony. CCP 657, para 10; Montijo v. Western Greyhound Lines (1963) 219 CA2d 342; Locksley v. Ungureanu (1986) 178 CA3d 457; Dominguez v. Pantalone (1989) 212 CA3d 201, Ashcraft v. King (1991) 228 CA3d 604, 616-617.

In this case, the testimony of defendant Topp and Cantor falls directly into the category of inconsistent and vague testimony. In fact, their testimony was downright perjurious and false. In cross-examination, both Topp and Cantor admitted that the information contained in the declaration they signed were not accurate. This was with respect to the most material facts of this case (i.e., what kind of dog was it; how many times had it been to the defendant's property; had it bitten before, etc...). On the basis of the vague and inconsistent testimony, the motion for new trial should be granted, as the weight of the evidence indicated that the defendant was strictly liable for this incident.

The trial court has wide discretion in granting or denying a motion for new trial. Its ruling will not be upset on appeal unless the court demonstrated a manifest and unmistakable abuse or discretion, or based its order exclusively upon an erroneous concept of legal principles. Schelbaur v. Butler Mfg. Co. (1984) 35 C3d 442; Ashcraft v. King (1991) 228 CA3d 604, 616; Neal v. Montgomery Elevator Co. (1992) 7 CA4th 1194, 1199-1200

Continue reading "Sacramento Woman Fights Dog And Then Insurance Comapny, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)

THE TESTIMONY OF SANDY WHITE ESTABLISHED THAT THE DOG HAD BEEN TO DEFENDANT TOPP’S RESIDENCE AT LEAST 5-6 TIMES.

a. Sandy White, the owner of the dog testified that the dog had been to the defendant's property on at least 5-6 prior occasions; and

b. That she had lied in her declaration under penalty of perjury dated 10-21-07 regarding how many times the dog had been to defendant Topp's property.

TESTIMONY OF TORY BROWN

The testimony of Mr. Tory Brown further supported a finding by a preponderance of the evidence that the defendant Topp was liable under both strict liability and premises liability for the plaintiff's injuries. Mr. Brown testified to the witnessing the following:

c. That two weeks before the plaintiff's incident, he was attacked by the same dog that attacked plaintiff and that the dog came from the defendant's property (front yard) without a leash and unsupervised; and
d. One week before the incident involving plaintiff, he again saw the same dog unleashed, unsupervised in the front yard of defendant's property.

All of the testimony by Mr. Brown further supported Officer Samuel's testimony that Ms. Cantor had been keeping the dog at the residence of defendant Topp’s for the last several months, because the attack on Mr. Brown happened within the same time frame as the dog was living at defendant Topp's house.

A. Statutory Authority For Motion For New Trial
The principal statutory authority for a new trial is CCP 657. The verdict may be vacated... and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any one of several specified causes.”
A motion for new trial calls for reexamination of an issue of fact or law in the same court after a trial and decision by a jury, court or referee. CCP 656, 657; Fountain Valley Chateau Blanc Homeowner's Ass'n v. Department of Veterans Affairs (1998) 67 CA4th 743, 750-753.

Continue reading "Dog Twice Attacks Sacramento Woman, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

TESTIMONY OF PLAINTIFF SANDY WHITE

A. Testimony from plaintiff White indicated that the dog that attacked her (twice) on the day of the incident not only came from the defendant Topp' residence, but that the dog could not be controlled by the residents of Topp home who were home at the time of the attack.
B. White's testimony was further supported by his deposition testimony wherein, White ' testimony remained consistent and truthful.

TESTIMONY OF DEFENDANT DIANA TOPP

A. The testimony from defendant Topp was clearly perjurious and false as to the most basic and crucial of facts in this accident such as:

a. What type of dog it was that was at her property;
b. How many times she had seen the dog;
c. Who the dog had come to visit;
d. How many times had the dog been to her property;
e. What were the propensities of the dog:

B. The defendant clearly lied in her deposition as exposed during her trial testimony that was completely inconsistent with her deposition testimony.

Continue reading "Sacramento Woman Seriously Injured In Dog Attack, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

THE RESPONSE PROVIDED BY THE COURT TO JURY QUESTION #1 WAS MISLEADING AND DID NOT ADDRESS THE SPECIFIC QUESTION POSED BY THE JURY.

The jury in question #1 asked whether "time of length of stay" is a factor? This points to defendant Topp allowing the dog to enter her property.

Rather than the court indicating that this cause of action is governed by strict liability and that that under strict liability time is not a factor, and that it does not matter how many times, or for what period of time that the activity lasted, the court cited to an abstract principle regarding the definition of keeper or controller referenced in the case of Buffington v. Nicholson (1947) 78 Cal. App.2d37,42. This case, which was decided before the enactment of the strict liability statute that governs dangerous domestic animals does not specifically address the issue of time or length of stay. In fact, the Buffington definition refers to the concept that a casual presence [of a dangerous domestic animal] does not constitute a keeper. This definition in Buffington does not take into account the legislature’s intent to make the harboring of a dangerous domestic animal subject to strict liability,

The theory of strict liability stands for the concept that if you engaged in the activity once, twice, five times or for one second, one minute, one hour, one day, etc... you are strictly liable if you knew or should have known that the dog was vicious and the dog causes harm to another person. The concept is directly analogous to other strict liability statutes such as engaging in ultra hazardous activities (i.e., blasting, explosives) because it does not matter if you engage in the activity for one second, one minute, one hour, one day etc.., the moment you engage in the activity strict liability attaches. The same is true with a dangerous domestic animal. Time or length of stay does not matter.

Continue reading "Lawsuit Filed After Woman In Sacramento Bitten By Dog, Part 3 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

IT WAS AN ERROR OF LAW FOR THE COURT TO GRANT DEFENDANT'S MOTION FOR NON-SUIT ON THE PREMISES LIABILITY CAUSE OF ACTION AGAINST THE DEFENDANT DURING THE PENDENCY OF THE TRIAL.

Plaintiff alleged in her complaint that the defendant Topp was liable under the theory of premises liability. Prior to commencement of the trial, the court read a statement of the case that referenced plaintiff's premises liability claim against the defendant as well as the strict liability cause of action for dog bites. Prior to opening statement, plaintiff's counsel sought and obtained this court's permission to address all of the causes of action separately, including, but not limited to, premises liability to the jury in opening statement.

Then, as plaintiff's counsel was beginning to explain all three causes of action to the jury in opening statement, the court interjected and stated You can't talk about that . And although plaintiff's counsel inquired of the court as to the permission it had earlier granted to address all three causes of action individually, the court replied that further discussion of the distinct causes of action against the defendant Topp were not going to be permitted.

Essentially, the jury was prevented from any further explanation in opening statement about the causes of action other than what the court allowed prior to it interjecting. The court interjecting would not have had any adverse effect of the plaintiff's ability to establish its case under the theory of premises liability, nor have constituted an error of law, except for the fact that the court then granted defendant's motion for non-suit on the premises liability cause of action for inadequately addressing the cause of action in opening statement .

Continue reading "Owners Sued After Dog Attacked A Sacramento Woman, Part 2 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

Plaintiff SANDY WHITE ("White") will move this Court for an Order granting a New Trial/ JNOV against Defendant DIANA TOPP ("Topp") pursuant to sections 629, 657 and 662.5 of the Code of Civil Procedure on the following grounds:

1. The court, as a matter of law, made an error in of law in granting defendant's motion for non-suit related to plaintiff's premises liability cause of action (during the pendency of the trial; and
2. That the court instruction to jury question #1 was misleading and did not specifically address the question posed by the jury; and
3. The preponderance of the evidence clearly indicated that the jury should have reached a different result regarding the strict liability of the defendant in this action.

POINTS AND AUTHORITIES

STATEMENT OF FACTS
This case is about a dog bite incident, which occurred on or about April 13, 2007. Plaintiff, Sandy White, was walking her dog on a leash at approximately seven p.m.. While walking on the sidewalk of defendant's premises located on Maddox Dr., Sacramento, CA, defendant's dog suddenly attacked plaintiff twice knocking her to the ground. As a result of the attack, plaintiff, Sandy White sustained injuries to her upper right arm, right hand, left ankle, permanent scarring and disfigurement. The defendants are claiming that the dog that caused the injuries to plaintiff wasn't their dog and it had never been to defendant's property before the date of the incident, and therefore they are not responsible for the injuries sustained by the plaintiff.

Continue reading "Sacramento Woman Viciously Bitten By A Dog, Part 1 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

Paul Smith gags when he tries to drink water. Steven Davis has nightmares about his family dying. Mike Jones still has flashbacks during which he sees Sherrie Johnson in the room with him. All three of these men feel tremendous guilt that they survived the contest, and Sherrie did not. Under Fletcher, supra, it is the Court's job at this juncture to determine whether, on the evidence, emotional distress can be found. Plaintiffs have each established not only that such emotional trauma can be found, but has been diagnosed at the clinical level, and is being treated by professionals. Against this scientific, clinical showing of severe emotional distress Defendants cannot show the absence of a triable issue as to any material fact. On that basis, the Motion must be denied.

Emotional Distress That Arises as a Consequence of Sherrie Johnson's Death is Recoverable When Plaintiffs Were Exposed to the Same Risk of Harm

Defendants mistakenly rely on Thing v. La Chusa (1989) 48 Cal. 3d 644 and its progeny to argue that because none of the Plaintiffs were related to Sherrie Johnson or even actually witnessed her death. This completely misses the point. The line of cases cited by Defendant involves claims by plaintiffs who were not themselves the target of the same wrongful conduct that resulted in harm or injury to the other person. Here, each of the Smith Plaintiffs suffered physical injury as a result of participating in the same contest that killed Sherrie Johnson. Their physical symptoms ran the gamut from vomiting to nausea, discomfort, pain, headaches and skinned up arms and legs (Paul Smith, caused when he had to crawl to the bathroom).
California has long defined a bystander as one who claims, damages for emotional distress caused by observing the negligently inflicted injury of a third person. Thing, supra, 667-668.

Here, none of the Smith Plaintiffs claim IIED because they witnessed the death of Sherrie Johnson. Rather, their claims are based on participating in the same contest and being a victim of the same conduct that killed her. They are not bystanders; they are direct victims of an event that resulted in the death of one participant and injuries to others, including these three women. For that reason, none of the authorities cited by Defendants with respect to bystander liability relate to the claim for intentional infliction of emotional distress.

Continue reading "Sacramento Men Suffer Severe Emotional Injuries From Deadly Radio Contest, Part 6 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

Thus, it is not unusual or atypical that the extent and nature of these emotional conditions was not discerned as part of Defendants’ somewhat cursory depositions of the Plaintiffs. For the same reason we cannot rule out emotional harm merely because the victims are not particularly adept at expressing their symptoms, especially in a crowded room filled with lawyers, a court reporter and a video camera (each Plaintiff was video-taped at deposition). What is critical is that, "all [three plaintiffs] have described incidents of recurring nightmares; fear; heightened anxiety; and deep feelings of guilt that arose in close proximity to the incident," and have expressed markers consistent with a PTSD diagnosis, e.g., changes in personality; feelings of permanent damage; shame over surviving (i.e., survivor guilt); and persistent feelings that they and their families are still at risk of injury.

Clearly Paul Smith, Steven Davis, and Mike Jones have provided ample evidence not only of severe emotional distress, but of substantial quantity and endearing quality to satisfy Fletcher, Christensen and every other authority cited by Defendants, with perhaps one exception. Defendants rely on Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 for the proposition that a minor plaintiff who alleged that her 48-year old doctor, who drugged, raped, intoxicated and abused her for eight months did not allege sufficient facts to demonstrate severe emotional distress. On an even cursory examination it is clear that Angie M. does not support Radio's position.

Continue reading "Wrongful Death Suit Filed In Sacramento-Area Radio Contest, Part 5 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

Dr. Everstine has diagnosed the following emotional and psychological injuries secondary to the subject incident: 1) Paul Smith: PTSD; anxiety; major depression; phobia with respect to water consumption; 2) Steven Davis: PTSD; general anxiety disorder; major depression, agitated type ; 3) Mike Jones: PTSD; anxiety disorder; panic attacks; sleep disorder; major depression, agitated type.

Each of these men has experienced dramatic, intense and severe emotional and psychological injury due to the death of their co-contestant. Dr. Everstine opines that each will not only require years of therapy and medical management by a psychiatrist to recover, but that Mike Jones also should undergo couples counseling to help him learn how to effectively share his feelings with his spouse and others.

According to Dr. Everstine the discovery of such emotional trauma is the province of experts.
The fact that these individuals may not have articulated any particular symptoms does not mean the symptoms were not present immediately after the incident... "Such disclosures would not typically be made outside the confines of appropriate questioning by a trained professional."

Continue reading "Sacramento Radio Contestants Suffer Psychological Injuries, Part 4 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

Dr. Everstine has opined that this treatment is reasonable, necessary and causally related to the subject incident. Dr. Everstine opines that, “each of the three men exhibit symptoms consistent with a diagnosis of chronic PTSD. Each will require, "ongoing therapy and medical management through the use of appropriate medications." This condition is secondary to the contest, during which, "each [man] experienced a severe emotional reaction as a result of participating in an event which caused the death of one person and which could have resulted in the death or serious injury to these other individuals." In addition to PTSD, Dr. Everstine opines that each Plaintiff is also suffering from various stages of depression secondary to the event, along with general anxiety disorder consistent with significant emotional trauma.

In terms of symptoms, Dr. Everstine noted the following:

1. Paul Smith's symptoms include severe survivor guilt; severe emotional alienation; water phobia (fear of drinking water) to the point that he is unable to drink water without gagging; flashbacks of Sherrie Johnson; sleep problems; intrusive thoughts; obsessive behavior; avoidant behavior and thought patterns; mood swings; depression; personality change; generalized anxiety with panic attacks; social alienation and social anxiety; damaged self-esteem and loss of self-confidence and reoccurring fears something similar will happen to his family.

Continue reading "Three Sacramento Males Severely Injured In Fatal Radio Contest, Part 3 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

DISCUSSION
Because Defendants Offer Insufficient Undisputed Material Facts to Shift the Burden to Plaintiff, the Motion Must Fail

The party moving for summary adjudication must show that plaintiff cannot establish an essential element for a cause of action. C.C.P. §437c(p)(2). As a threshold, the moving party must show, that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.C.P. §437c(c) (emphasis added). Here, of the 34 undisputed material facts proffered by Defendants, only three are undisputed. Of the remaining 31 facts, four are disputed as irrelevant. The balance of 27 material facts are each disputed on substantive, material grounds. In addition, Plaintiffs offer 45 disputed material facts that bear directly on the severe, clinical and chronic emotional distress and related psychological injuries suffered by each of them. Because Defendants fall far short of the threshold burden to demonstrate there is no triable issue as to any of the material facts offered in support of summary adjudication, the motion must fail.

Defendants Cannot Establish the Absence of Disputed, Material Facts in Light of Plaintiffs' Showing of Severe Emotional Harm and Psychological Distress

Defendants cite Fletcher v. Western Nat. Life Ins. Co. (1970) Cal.App.3d 376, 396-397 for the proposition that, it is the court that determines whether, on the evidence, severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. They aver that to prove intentional infliction of emotional distress, plaintiffs, must show they suffered severe emotional distress. Motion, 7:16-17, citing Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903. Defendants refer to civil jury instructions which defines severe emotional distress as a condition which is, not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it. Motion, 7:20-23, citing California Jury Instruction 1604. Defendants identify that courts have traditionally considered factors like intensity; duration; and psychological manifestations of emotional distress when determining severity. Motion, 7:23-8:4, citations omitted. Against any backdrop articulated by Radio, it is clear that each of the Smith Plaintiffs have suffered severe emotional distress due to the wrongful death of their co-contestant.

Continue reading "Sacramento-Area Radio Station Sued For Fatal Contest, Part 2 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.) Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendant Radio Roseville’s Motion for Summary Adjudication INTRODUCTION In their latest attempt to escape liability, the Radio Defendants ask the Court to rule that Plaintiffs Paul Smith, Steven Davis, and Mike Jones (hereinafter, "the Smith Plaintiffs" ) cannot establish an essential element of their respective claims for Intentional Infliction of Emotional Distress, i.e., severe emotional distress. Defendants mistakenly assume that because they did not adduce what Defendants consider to be "evidence of severe emotional distress," then Plaintiffs cannot have suffered it. Not only is this position logically flawed, but by its nature finds Defendants relying almost exclusively on irrelevant facts and unsupported assumptions. Radio's motion is fatally flawed; it fails utterly to demonstrate the absence of material, disputed facts with respect to the severity of each Plaintiffs' emotional injuries. Among other flaws, Defendants imply, without foundation in fact or law, that because the physical symptoms of hyponatremia faded for each within days following the contest, the Smith Plaintiffs cannot have sustained emotional harm. In fact, each Plaintiff has been diagnosed as suffering from Post Traumatic Stress Disorder, in addition to a variety of other psychological conditions ranging from anxiety, survivor guilt and water phobia to major depression. To address these issues each Plaintiff is being treated by a variety of mental health care professionals. Even if the Court somehow found sufficient absence of triable, material facts to consider whether the burden shifts to Plaintiffs, the motion must still fall. Plaintiffs submit 45 Disputed Facts establishing that each of the Smith Plaintiffs has been clinically diagnosed with severe emotional harm, including PTSD; severe survivor guilt; severe anxiety; irrational fear; phobias; and major depression.

Continue reading "Sacramento Plaintiffs Sue Radio Station Due To Wrongful Death, Part 1 of 6" »