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 dog bite/personal injury case and its proceedings.)

Jury Misconduct As Grounds For New Trial

Jury misconduct (CCP 657(2): Juror misconduct so seriously infringes on the right to a fair trial that it raises a rebuttable presumption of prejudice. Enyart v. City of Los Angeles (1999) 76 CA4th 499, 507.

Here the entire jury panel took less than one hour (after the court’s response to jury questions #1 & #2) to return a verdict of no liability for the defendant, this after five full days of testimony. The jury deliberated very quickly and it appears they did not review all the evidence or jury instructions, as evidenced by the failure of the jury to read and evaluate the recorded statement of the defendant, or to review all of the testimony offered by both the plaintiff as well as the eyewitness to this accident.

The court should consider such factors as whether the misconduct has diminished a party's burden of proof on a critical issue, impeached witnesses or contradicted a defense, or conveyed information that would bias the other jurors. Young v. Brunicardi (1986) 187 CA3d 1344.

That a juror concealed a bias or prejudice on voire dire. Bardessono v. Michels (1970) 3 C3d 780; Enyart v. City of Los Angeles (1999) 76 CA4th 499, 506, 509-511.

Continue reading "Sacramento Dog Bite Victim Seeks New Trial, Part 8 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.)

B. Verdict Or Other Decision Against The Law (CCP 657(6)

A motion for new trial may be granted on the ground of insufficiency of the evidence to justify the verdict or other decision against the law. (CCP 657(6).)

In jury trials, each party in fact has two hearings, one before the jury and the other before the court as a thirteenth juror. Norden v. Hartman (1952) 111 CA2d 751, 758. As explained by one court: In weighing and evaluating the evidence, the court is a trier of fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there is sufficient evidence to sustain the jury's verdict on appeal, so long as the court determines the weight of the evidence is against the verdict. Candido v. Huitt (1984) 151 CA3d 918, 923. It is the trial judge's responsibility on motion for new trial to determine the weight of the evidence: A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision... unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (CCP 657.)

In this vicious dog bite case, based upon all of the testimony offered by the plaintiff, including, but not limited to, the inconsistent testimony of Topp and Cantor, coupled with the accuracy of the animal control officer's testimony, the jury clearly should have reached a different verdict.

This includes the power to consider the credibility of witnesses and to draw reasonable inferences contrary to those drawn by the jury. Valdez v. J.D. Diffenbaugh Co. (1975) 51 CA3d 494, 512; Fountain Valley Chateu Blanc Homeowner's Ass'n v. Department of Veterans Affairs (1998) 67 CA4th 743, 751. New trial motions allow judges to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury.

Continue reading "After Vicious Dog Attack Sacramento Woman Sues To Recover For Injuries, Part 7 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 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" »

A postal carrier was cornered and attacked by four Pit Bulls-mix dogs, July 15th in Fresno California, south of Sacramento. The postal carrier was returning to her mail truck when she was suddenly cornered by the four dogs. They were extremely aggressive and before the woman fell to the ground the dogs were biting at the mail in her hands. Once she was knocked to the ground, the dogs bit her arms, shoulders, legs, and they shook her. eventually neighbors noticed what was happening and scared the dogs away with sticks. Eventually the caught 3 of the dogs, but one got away. The owner of the dogs was cited on a county ordinance pertaining to vicious dogs. The dogs were turned over to SPCA officials. The mail carrier was treated at Community Regional Medical Center and released the same day.

According to www.dogbitelaw.com:

*The most recent official survey, conducted more than a decade ago, determined there were 4.7 million dog bite victims annually in the USA. A more recent study showed that 1,000 Americans per day are treated in emergency rooms as a result of dog bites. In 2007 there were 32 fatal dog attacks in the USA. Most of the victims who receive medical attention are children, half of whom are bitten in the face. Dog bite losses exceed $1 billion per year, with over $300 million paid by homeowners insurance.

If you or a loved one have been bitten by a dog and are seriously injured as a result, you have rights. Moseley Collins can help you obtain those rights. The average citizen does not know how to proceed in a legal matter such as this. An experienced personal injury lawyer has the knowledge and the skill to help you win your case including money damages for your past and present medical bills, your past and present wage loss, and an award for the pain and suffering you have experienced.

Moseley Collins is a Sacramento personal injury attorney, specializing in major injury cases.

Tim Tillman, a Sacramento, California resident, was attacked by two pit bulls June 16th, 2008. According to a story that appeared in the Sacramento Bee, Tillman, a Sacramento Municipal Utility District employee was bit on both arms and had one hand mangled while working. His mangled hand required surgery. When Tillman arrived to the clients home, the gate to Cynthia Peters yard was open with no latch to securely shut it. He was not warned that the dogs had vicious tempers, so when the dogs proceeded towards Tillman, he thought he could handle them and get to his car safely.

According to the senior animal control officer who reported to the scene:

"It was one of the worst bites I have ever seen."

Also according to the Sacramento Bee:

Even if Tillman decided not to press a case against the two pit bulls and their owner, county officials would have pursued a vicious dog hearing anyway. The incident was one of several serious dog attacks in Sacramento County last month.

The same day Tillman was attacked, a woman and her Pomeranian were attacked by a stray dog. The woman suffered from a broken finger, some cuts, and bruises. Her dog suffered from a broken leg and a couple punctured wounds. The dog responsible for this hasn't been found.

Dog bites seem to be quite common recently. A study shows that in June, 123 bite reports were recorded involving dogs or cats in Sacramento County.

If you or a loved one have been bitten by a dog and are seriously injured as a result, you have rights. Moseley Collins can help you obtain those rights. The average citizen does not know how to proceed in a legal matter such as this. An experienced personal injury lawyer has the knowledge and the skill to help you win your case including money damages for your past and present medical bills, your past and present wage loss, and an award for the pain and suffering you have experienced.

Moseley Collins is a Sacramento personal injury attorney, specializing in major injury cases.

An unidentified man in the Citrus Heights area, a suburb east of Sacramento, CA, is being heralded as a "Good Samaritan" by Michael and Joanne Golden, a couple who lives in the area.
He earned the title one Sunday afternoon this January when he saved Joanne and attempted to save her dog, Cody, from a vicious and unidentified pit bull.

"I don't know what would have happened," Michael Golden said. "We want to thank him and have him help us positively identify the dog."

The attack occurred around 3:15 p.m. on January 6. Joanne was walking in their neighborhood near Birdcage Center with her father, Angelo Romano, 84, and her dog, Cody, a Chihuahua-Jack Russell Terrier mix, when she saw the pit bull for the first time: The Sacramento Bee reported:

It grabbed Cody, and when Joanne Golden tried to intervene, it attacked her, knocking her on her back and biting her on both hands.

The pit bull continued to attack Joanne and she began to lose her strength. Just when things looked dismal, a man, our Good Samaritan, pulled up in a black SUV. He fought the vicious dog off of Joanne and then packed everyone into his vehicle. With Joanne's directions, the Good Samaritan drove to her home and ran to the door to alert her husband, Michael, of what had happened.

"All I heard was 'wife … pit bull attack,' " Golden said. "My dog was bleeding on this man's car seat. My wife was bleeding."

Michael rushed his wife to the Mercy Hospital in Folsom where she was treated for her bites and bruises. Cody died a few hours later.

In all the excitement, Michael never thought to ask the Good Samaritan his name, something he now regrets. He wishes very much to find this man so he may thank him and also receive help in indentifying the dog who attacked his wife.

To read the full story, click here.

If you or loved one has been injured in a dog attack, you have rights. By California law, the owner of the animal that attacks another person is always liable (at fault) for the attack. That means that they are responsible for any economical damages you incur because of the attack, i.e, medical bills, lost wages, etc.

If you or a loved one has been injured in a dog attack, I can help you. Please contact me and my staff at the Law Offices of Moseley Collins. You contact us by visiting our website by the clicking on the link above or by calling us at 916.444.4444.

I read an incredible story in the news today about a high school boy and his road of recovery since a severe dog attack. The young man’s name is Shawn Jones. When Shawn was 10-years old, he saw his whole life change. One afternoon, Shawn was riding his bike, when a pack of three pit bulls attacked him. It was a brutal attack. They say that one pit bull’s jaw can exert as much pressure as 1,000 pounds per square inch, can you imagine the detrimental effects three of those jaw can bring?

The attacks left Shawn in the hospital with chunks of muscle torn out of his arm, nerves and muscles destroyed on both sides of his face, and both of his ears ripped off. The first several days were very uncertain, with Shawn hanging between life and death. In addition to his horrendous injuries directly from the dog attack, Shawn began having blood and other fluids leak into his lungs. The doctors were constantly in a battle to fight off bacteria and infection.

Luckily, after some time, Shawn began to show signs of improvement. He began to undergo reconstructive surgeries to repair the extensive damage done to his face and body. Shawn spent eleven months recovering in the hospital from his injuries.

Today, Shawn is a junior at high school. He plays football, wrestles and runs track. He is doing well in school, achieving a 3.5 grade point average. He has definitely had his struggles since his near-death incidence. But his determination and God’s hand has prevailed, bringing him through discouragement, bouts of depression and uncertainty. Shawn now speaks to victims of animal attacks at Children’s Hospital. He shares with them that there is hope and to pass along the understanding he has gained from his own six year recovery.

Shawn’s attack from those three pit bulls is one of the worst I have heard. But through it all, there is hope and there is life. Never let go of this, no matter what your situation may be. If you have ever suffered from a serious dog attack, please call me at the Law Offices of Moseley Collins. I am here to listen and to help.

To read the article on Shawn Jones, please click here.

Many times when a dog attacks, a serious injury can occur in the victim. At our Law Firm in Sacramento, our clients that have experienced a dog attack have suffered both physically and emotionally. As I was reading an article in the news today, I came across a woman who was attacked by a dog during her job. I can only imagine the stress that will bring. The attack occurred west of our Sacramento home, in Hayward, California. The woman was a postal worker and she was attached by a pit bull on her mail run.

The news reports state that the woman, Virginia Joaquin, received injuries that required four-hours worth of surgery on her right hand. Luckily, when attacked, Virginia (undoubtedly), began to scream and neighbors rushed to her rescue, beating the pit bull away with a piece of wood.

If you have been attacked by a dog, you should seek medical and legal help. In California, State law places a person responsible for a dog attack if a person’s negligence causes the attack to happen, a person keeps a dog knowing that it has been known to attack others, or if a person is violating a leash law.

If you have been attacked or bitten by a dog and would like to receive more information, please contact the Law Offices of Moseley Collins.

Until next time…

For the full article on Virginia’s attack, please click here.

Dog bites and attacks are a common thing in our home of Sacramento, California. Just see the blog I wrote on the staggering statistics of dog bites and you will understand what I mean. Dog attacks are dangerous and can cause serious injuries that need immediate medial attention and at times, can even be fatal.

An actor named Ving Rhames, (starred in Pulp Fiction), recently traveled out the country to film a movie, leaving his caretaker of two years to watch his house… and his dogs. The caretaker was found dead at the actor’s house with dog bites covering his body. The actor’s four dogs (reports state that they were either bullmastiffs, Brazilian mastiffs, or English mastiffs) were found roaming the yard.

As I stated in my previous blog, make sure to protect other people by training your dogs, neutering them, and so forth. Although dogs can be amazing pets to have, we must be aware that there are dangers associated with having them.

If you or anyone you know have ever suffered from a dog attack, please call our Law Office for advice.

Until next time….

For the full article, please click here.

It is amazing to see how many people are victims of dog bites nowadays. This threat is especially high throughout California and even more specifically, in the Sacramento area.

Reading through the internet, I was shocked to see how many people have suffered from dog bites and dog attacks in just the past week. Even more interesting was the statistic I found on the California State Assembly Democratic Caucus website. Research now shows that "California suffers the nation’s highest occurrences of dog bites, animal attacks and attack-related fatalities in the nation and children are the most common victims".

Not only that, but Sacramento is one of the highest ranking cities for dog bites. A study done by the United States Postal Service shows Sacramento as coming in third place for the largest amount of postal workers bitten or attacked by dogs (I always knew that had to happen a lot...). Only Long Beach and Houston rank higher than Sacramento.

So what is a person to do? First of all, if you are a dog owner, it is advised to spray or neuter your dog. Unaltered animals are three times as likely to attack humans or other animals. Secondly, if you are attacked by a dog, seek medical help and notify the authorities to prevent an attack from happening again. Finally, with serious injuries, seek legal advice and assistance.

Please do not hesitate to call us at the Law Offices of Moseley Collins if you have been suffered injuries in a dog attack or bite, we are here to help.

Until next time...

For further information on prevention and treatment to dog bites please click here.