Key Decisions

July 2012 – All Articles, Full Text On the Web

(filed under: Key Decisions Archive | August 8, 2012)

Insureds Have Joint And Several Liability To Insurer Who Settles An Uncovered Claim

Axis Surplus Insurance Company v. Reinoso
(Cal. Ct. of App., 2d Dist.), filed June 26, 2012

KEY FACTS

Edgar and Linda Reinoso owned and operated a number of apartment buildings. They had ongoing maintenance and habitability issues. A group of tenants in one of the properties eventually sued them for being “slum-lords.”

The Reinosos tendered the suit to their liability insurance carrier, Axis Surplus Insurance Company. Axis undertook their defense under a reservation of rights.

Based on determinations that the Reinosos faced exposures of up to $30 million and that Edgar would not do well at trial, Axis settled the claims against the Reinosos.

After the settlement, Axis sued the Reinosos. It took the position that it had no duty to indemnify and that, as such, it was entitled to reimbursement for the cost of defending the Reinosos and the amount it paid in settlement of the claims against them.

After a bench trial, the trial court denied Axis recovery of its defense costs, but awarded it the amount of the settlement. It denied defense costs because Axis had failed to carry its burden to show that the claims it defended were not even potentially covered by the insurance policies — a requirement for recovery of defense costs. However, it awarded the settlement amount because it determined that there was ultimately no duty to indemnify. The court apparently based its determination on its finding that the tenants’ injuries were barred by policy and statutory exclusions for intentional or willful acts, namely the willful failure to maintain the apartments in a habitable condition.

HOLDING & REASONING

The Court of Appeal affirmed.

The court rejected Linda Reinoso’s contention that the trial court erred when it found that she was not an “innocent” insured entitled to benefits under the insurance policies. The court briefly addressed statutory and policy exclusions for intentional and willful acts, and the “innocent” insured exception to these exclusions. It then ruled that there was substantial evidence supporting the trial court’s finding that Linda was not an “innocent” insured. In particular, it found that there was substantial evidence showing Linda knew how the properties she and Edgar owned and operated were being operated.

The court also rejected Linda’s contention that the trial court erred when it ordered the insureds to pay the entire sum jointly and severally. The court reasoned that the insureds were jointly and severally liable for the tenants’ injuries and that Linda, although not as culpable as Edgar, received the full benefit of the settlement.

ANALYSIS

This case emphasizes the differing standards that attach to the relatively broad duty to defend, on the one hand, and the somewhat narrower duty to indemnify, on the other.

*****

A Real Estate Sales Agreement That Conditions Recovery Of Attorney’s Fees On Participation In A Mediation Means What It Says

Cullen v. Corwin
(Cal. Ct. of App., 3d Dist.), filed June 7, 2012

KEY FACTS

Joe and Marieanne Cullen bought a house from Paul and Geraldine Corwin. They used a standard form purchase agreement that provided for the prevailing party in any dispute to recover legal fees. However, it also provided that this right is subject to a condition precedent that reads, “If, for any dispute . . . to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after [the making of] a request . . . , then that party shall not be entitled to recover attorney fees . . . .”

The Cullens subsequently discovered problems with the roof and sued the Corwins. The Cullens asked that the dispute be submitted to mediation. However, the Corwins replied that mediation was premature and would be a waste of time until certain discovery was undertaken. They felt that the discovery would enable them to move for summary judgment based on the statute of limitations and that once such a motion was on file, they would be in a position to mediate meaningfully.

The trial court found that the Cullens’ action was time barred and dismissed the action. It then awarded the Corwins attorney’s fees.

HOLDING & REASONING

The Court of Appeal affirmed the dismissal, but reversed the fee award.

In the unpublished part of the opinion, the court found that the Cullens knew of the problems with the roof more than three years before filing suit and that, as a result, their action was untimely.

In the published part of the opinion, the court found that the Corwins failed to engage in mediation after being asked to do so and that their reason for declining, namely that the Cullens had not responded to discovery, was not a valid excuse for not doing so. As a result, they were not entitled to a fee award.

The court noted that the Corwins were entitled, for strategic reasons, to defer mediation until they had undertaken discovery and had filed a motion for summary judgment. However, that did not excuse them from participating in a mediation, as that was what was required under the contract if they wanted an opportunity to recover attorney’s fees. The court noted: “The requirement ‘is designed to encourage mediation at the earliest possible time.’”

ANALYSIS

An increasingly popular contract term is to tie the prevailing party’s right to recover attorney’s fees to an earlier attempt to mediate. By strictly enforcing the mediation requirement, courts may be able to drive more cases toward early settlement.

*****

The State Was Not Liable For Failing To Light Public Roadways

Mixon v. State Pacific Gas & Electric
(Cal. Ct. of App., 1st Dist.), filed May 29, 2012 

KEY FACTS

A motorist struck and injured a boy walking with his family while crossing the street at an intersection. The intersection has a marked crosswalk, but no signal lights and no street lights directly overhead. The injured boy and his siblings sued the motorist, the State of California and Pacific Gas & Electric Company (PG&E).

The plaintiffs sued the State alleging that it maintained the street intersection in a dangerous condition because of the lighting configuration, lack of traffic control signals and signs, the placement of signs, the type of crosswalk markings, and the grade of the intersection. They sued PG&E for allegedly failing to provide adequate lighting with overhead street lights.

The trial court granted the State and PG&E summary judgment. It found that the intersection was not in a dangerous condition and that there was no duty to provide lighting.

HOLDING & REASONING

The Court of appeal affirmed.

A “[d]angerous condition” in a public property is defined as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

Third party conduct by itself, unrelated to the condition of the property, does not constitute a “dangerous condition” for which a public entity may be held liable. There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff for a public entity to be liable.

A public entity is under no duty to light its streets. Since there was no duty to provide lighting, there was no negligence in failing to provide brighter lighting or consistently bright lighting.

The Legislature has expressly declared that “[a] condition is not a dangerous condition . . . merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restrictions signs, as described by the Vehicle Code, or distinctive roadway markings [of parallel dividing lines] as described in Section 21460 of the Vehicle Code.” Thus, the state could not be liable because of anything having to do with signals or signs.

The undisputed facts established the grade of the road was within specifications. The State could not be liable because of the grade of the road.

A public utility, like PG&E, cannot be charged with greater liability than the public entity itself in regard to the lighting.

ANALYSIS

The court rejected the plaintiffs’ argument that dim lighting would give rise to a cause of action even if zero lighting would not support a cause of action. The court also rejected several other companion arguments based on criticisms of the crosswalk and intersection.

*****

A Spouse Seeking Damages For Loss Of Consortium Need Not Have Been Married At The Time Of The Injury Producing Event, Just At The Time Of Its Manifestation

Vanhooser v. Superior Court
(Cal. Ct. of App., 2d Dist.), filed June 1, 2012 

KEY FACTS

Frederick Kenney was exposed to asbestos in the 1960’s and 1970’s during his service in the United States Navy, and until 1990 as an automobile mechanic working with asbestos-containing automobile parts. Hennessy Industries manufactured brake grinding machines. These machines caused asbestos particles to be released into the atmosphere where those working in the vicinity inhaled them. The inhalation of these asbestos particles may have led to mesothelioma.

Kenny’s last encounter with Hennessy’s products was sometime between 1988 and August 1990.

Kenny and Sherrell Vanhooser were married on December 31, 1991 or 1992.

Kenny first exhibited symptoms of mesothelioma in late 2010, almost 20 years after his last exposure to particles that may have been produced by Hennessy’s machines. Kenny was diagnosed with the disease in June 2011.

Kenny sued numerous companies, including Hennessy, seeking damages for negligence and strict products liability. Vanhooser included a cause of action for loss of consortium.

Hennessy moved for summary judgment on Vanhooser’s cause of action. It argued that because Vanhooser did not marry Kenny until after the alleged injury-causing event, namely his exposure to asbestos, she had no viable cause of action for loss of consortium.

The trial court granted Hennessy’s motion.

HOLDING & REASONING

The Court of Appeal reversed.

A person who suffers a loss of consortium as the result of a negligent or intentional injury to his or her spouse is entitled to recover damages from the tortfeasor.

A loss of consortium cause of action has four elements: “(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant’s act.”

The court held that the first element of a cause of action for loss of consortium is satisfied if the plaintiff’s marriage to the injured spouse predates discovery of symptoms, or diagnosis, of an asbestos-related disease. It noted that “[t]his is so even if the marriage postdates the spouse’s exposure to the asbestos that ultimately results in the injury.”

ANALYSIS

The court’s analysis and conclusions are largely consistent with a wide variety of cases involving latent injuries or damages.

*****

A General Contractor’s Scheduling Of Work And Failure To Call A “Rain Day” Did Not Constitute Such Retained Control As To Deprive It Of Protection Under The Workers’ Compensation Laws

Brannan v. Lathrop Construction Associates, Inc.
(Cal. Ct. of App., 1st Dist.), filed June 12, 2012

KEY FACTS

Brian Brannan worked for a masonry subcontractor on a construction project. The general contractor was Lathrop Construction Associates.

Brannan slipped on wet scaffolding belonging to another subcontractor who was working in the same area as he was and injured his back. He sued Lathrop, alleging his injuries were caused by Lathrop’s negligence in sequencing and coordinating construction work at the site, and failing to call a “rain day” to protect workers from dangerous conditions caused by slippery surfaces.

Lathrop moved successfully for summary judgment under the Privette-Toland doctrine. The trial court granted Lathrop’s motion finding that Brannan’s sole remedy was through workers’ compensation.

HOLDING & REASONING

The Court of Appeal affirmed.

The California Supreme Court summarized the Privette-Toland doctrine as follows:

Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. . . . By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.

One of the doctrine’s underpinnings is the availability of workers’ compensation to the injured employee:

[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.

However, there are some limited exceptions to the doctrine. One is based on the case of Hooker v. Department of Transportation, 27 Cal.4th 198 (2002). There, the Court considered whether the hirer of an independent contractor could be held liable for injuries to the contractor’s employee resulting from the contractor’s negligence under the theory the hirer retained control of the work but negligently exercised that control. It held: “a hirer of an independent contractor was not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but was liable to such an employee insofar as its exercise of retained control affirmatively contributed to the employee’s injuries.”

An assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. Likewise, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.

The court concluded that Lathrop’s act of scheduling the work did not subject it to liability under Hooker.

Lathrop did not direct Brannan’s work, and did not tell Brannan to gain access under the plaster scaffold the way he did. The court held that although Brannan contends he was left with no other option than to climb over the rungs of the scaffold, that fact did not support a finding of liability. It did, however, note that “This would be a different case if Brannan’s foreman or one of its employees had asked Lathrop to remove the scaffolding for safety reasons, Lathrop had promised to do so, and then it negligently failed to follow through.”

ANALYSIS

Whether work place injuries are confined to workers’ compensation typically turns on close scrutiny of the precise factual circumstances. The court’s indication that a simple job site verbal request could have changed the outcome of the case reflects the detailed nature of the needed factual scrutiny.

*****

The Duties Of A Real Estate Brokerage’s Designated Officer Run To The Corporation, Not Third Parties

Sandler v. Sanchez
(Cal. Ct. of App., 2d Dist.), filed June 18, 2012 

KEY FACTS

Keith Desser was a real estate salesman, president and sole shareholder of Gold Coast Financial, a real estate brokerage. He was also a principal of 765 South Windsor LLC. Desser solicited the Sandler parties to loan $600,000 to South Windsor to finance improvements to an eight-unit apartment building for the purpose of converting the units to condominiums. Desser represented that, once the improvements were made and the condominium conversion was completed, the property would be worth in excess of $5.5 million, more than enough, even with a first deed of trust of $2.75 million held by another lender, to secure the Sandler parties’ loan.

Desser, however, did not reveal that $600,000 was woefully insufficient to finance the necessary repairs for the condominium conversion; the property did not have sufficient equity to provide collateral for a second trust deed securing the note; and the primary lender had refused to extend the first note, which was imminently due. As a result, the holder of the first deed of trust foreclosed and left the Sandler parties’ note unsecured. In addition, Desser used $300,000 of the loan proceeds, which he obtained by amending the escrow instructions, for his personal expenses.

The Sandler parties sued 765 South Windsor, Gold Coast Financial, and Carlos Sanchez. They sued Sanchez because he was Gold Coast’s designated officer/broker. Although the complaint did not allege Sanchez played any role in the transaction, or even knew of it, the Sandler parties alleged he, as Gold Coast’s designated officer, owed them a duty in accordance with Business & Professions Code section 10159.2 to supervise Gold Coast’s employees, including Desser.

Sanchez challenged the legal sufficiency of the claims against him. He argued that he owed no duty, as a fiduciary or otherwise, to the Sandler parties. He acknowledged that a claim for breach of fiduciary duty would lie against Gold Coast and Desser. However, he argued that there could be no liability against him as a matter of law, absent allegations he authorized or personally participated in the wrongful conduct. He also argued he was not Desser’s principal and, therefore, could not be held vicariously liable for Desser’s misconduct. The trial court agreed and dismissed Sandler’s action against Sanchez.

HOLDING & REASONING

The Court of Appeal affirmed. It ruled that section 10159.2 imposed a duty on the designated officer to supervise the corporate broker’s employees. However, it ruled that the duty is owed to the corporation, not to third parties. As to third parties, absent special circumstances, officers and owners of a corporation are not responsible to third persons for negligence amounting merely to nonfeasance.

The court reasoned that Gold Coast Financial could be liable to the Sandler parties as Desser’s employer. And, Gold Coast Financial could seek indemnity from Sanchez for his failure to supervise Desser. However, Sanchez’s position did not expose him to liability to the Sandler parties.

ANALYSIS

The legislative history of section 10159.2 seems to support the conclusion that the requirement of a designated officer is for the benefit of the corporation, not third parties.

*****

A Witness Interview That Is Recorded Verbatim Constitutes Qualified Work Product

Coito v. Superior Court
(Cal. Sup. Ct.), filed June 25, 2012 

KEY FACTS

Jeremy Wilson, who was 13 years old, drowned in the Tuolumne River. His mother, Debra Coito, filed a complaint for wrongful death naming several defendants, including the State of California.

Six other juveniles witnessed what happened. There were allegations that all of the juveniles, including Wilson, were engaged in criminal conduct immediately before the drowning.

Counsel for the state sent two investigators to interview four of the juveniles. Counsel provided the investigators with questions he wanted asked. Each interview was audio-recorded and saved on a separate compact disc.

During depositions, the state’s counsel used the recorded interviews in questioning witnesses.

Plaintiff served the state with interrogatories and document demands. The interrogatories included Judicial Council form interrogatory No. 12.3, which sought the names, addresses, and telephone numbers of individuals from whom written or recorded statements had been obtained. The document demands sought production of the audio recordings of the four witness interviews. The state objected to the requested discovery based on the work product privilege.

Plaintiff filed a motion to compel an answer to form interrogatory No. 12.3 and the production of the recorded interviews. The state opposed the motion, relying primarily on Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), which held that recorded witness statements are entitled to absolute work product protection and that information sought by form interrogatory No. 12.3 is entitled to qualified work product protection.

The trial court denied plaintiff’s motion except as to the recording used by the state to examine the witness during the deposition. As to that recording, the court reasoned that the state had waived the work product privilege by using the interview to examine the witness during the deposition.

The Court of Appeal declined to follow Nacht & Lewis and concluded that witness interviews and the information sought by form interrogatory No. 12.3 are not entitled to absolute or qualified work product protection. It directed the trial court to compel discovery.

The California Supreme Court granted review.

HOLDING & REASONING

The California Supreme Court reversed the Court of Appeal and remanded for further consideration.

After considering the origins and history of the work product doctrine, the Court held: “witness statements obtained as a result of an interview conducted by an attorney, or by an attorney’s agent at the attorney’s behest, constitute work product protected by [Code of Civil Procedure] section 2018.030.” It noted: “From the very inception of judicial recognition of the concept, attorney work product has been understood to include witness statements obtained through an interview conducted by an attorney.”

A statement independently prepared by a witness does not become protected work product simply upon its transmission to an attorney. However, when the statement is based on questions the attorney thinks up, it is subject to protection. In the latter instance, the witness statement would not exist but for the attorney’s initiative, decision, and effort to obtain it.

The court addressed the question of whether interviews are subject to absolute, or merely qualified, protection. It explained:

It is not difficult to imagine that a recorded witness interview may, in some instances, reveal the “impressions, conclusions, opinions, or legal research and or theories” of the attorney and thus be entitled to absolute protection. . . . This may occur not only when a witness’s statements are “inextricably intertwined” with explicit comments or notes by the attorney stating his or her impressions of the witness, the witness’s statements, or other issues in the case. It also may occur when the questions that the attorney has chosen to ask (or not ask) provide a window into the attorney’s theory of the case or the attorney’s evaluation of what issues are most important. Lines of inquiry that an attorney chooses to pursue through follow-up questions may be especially revealing. In such situations, redaction of the attorney’s questions may sometimes be appropriate and sufficient to protect privileged material. At other times, however, it may not do to simply redact the questions from the record, as the witness’s statements will reveal what questions were asked. Moreover, in some cases, the very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information, perhaps especially so in cases involving a multitude of witnesses. . . . These are circumstances where absolute work product protection may apply.

However, the Court recognized that that witness statements procured by an attorney will not always reveal the attorney’s thought process. As a result, the Court held that an attorney resisting discovery of a witness statement based on absolute privilege must make a preliminary or foundational showing that disclosure would reveal his or her “impressions, conclusions, opinions, or legal research or theories.”

Even when statements do not reveal an attorney’s impressions, conclusions, opinions, or legal research or theories, the statements are still entitled to a qualified privilege. This is because the attorney still has expended effort and an opponent cannot take advantage of that effort without a proper showing of necessity. A party seeking the statements must show that being deprived of them would be unfairly prejudicial or result in an injustice. For example, a party may be able to obtain witness statements by showing that the witness is no longer available or accessible.

ANALYSIS

The Court’s position falls between Nacht & Lewis and the Court of Appeal. This practical approach seems to call for a case-by-case assessment rather than a bright line rule.

*****

Other Cases Of Interest

An Employee’s Refusal To Sign A Memo Acknowledging He Was Being Disciplined Was Not Just A Good Faith Error In Judgment

Paratransit, Ind. v. Unemployment Insurance Appeals Board
(Cal. Ct. of App., 3d Dist.), filed June 15, 2012 

Craig Medeiros worked as a driver for Paratransport, a company that provided transportation for the elderly and disabled. A customer complained about Medeiros. Paratransport investigated the complaint and decided to discipline Medeiros by suspending him for two days.

Pursuant to a union contract, Paratransport was required to give Medeiros written notification of its decision. Medeiros was required to acknowledge having received the notification.

Paratransport asked Medeiros to sign the acknowledgment and assured him that he was not admitting anything. Nonetheless, Medeiros refused to sign the acknowledgment. Medeiros refused to sign the memo because he believed he should not sign anything without a union representative present. Paratransport warned Medeiros that if he didn’t sign, he would be fired for insubordination.

Medeiros asked to speak to a union representative and refused to sign the acknowledgment. Paratransport fired him.

Medeiros sought unemployment insurance benefits, which Paratransport resisted.

The Court of Appeal held Medeiros was not entitled to benefits.

Unemployment Insurance Code section 1256 disqualifies an employee from receiving unemployment compensation benefits if he or she has been discharged for misconduct. Misconduct within the meaning of section 1256 involves a willful or wanton disregard of an employer’s interests or such carelessness or negligence as to manifest equal culpability. It does not include, among other things, good faith errors in judgment.

The court ruled that Medeiros’ refusal to sign the acknowledgment did not amount to a good faith error in judgment.

*****

In An Action For “Waste,” “Bad Faith Waste” Does Not Necessarily Require Recklessness, Intentional or Malicious Conduct

Fiat v. New Faze Development, Inc.
(Cal. Ct. of App., 3d Dist.), filed June 27, 2012 

New Faze and another company purchased certain real property with the intention of redeveloping it.

The purchase price was $525,000. The purchasers made a down payment of $52,500 and executed a $472,500 promissory note secured by a deed of trust on the property.

At the time of the purchase, there were two buildings on the property.

After demolishing the structures in preparation for developing the property, but before developing it, the purchasers defaulted. The sellers, who held the promissory note, foreclosed. They then sued the purchasers and various associated individuals for bad faith waste and intentional and negligent impairment of security. The cause of action for bad faith waste alleged that the purchasers and the controlling owner committed waste by demolishing the building and failing to pay taxes on the property. The causes of action for intentional and negligent impairment of security alleged that all of the defendants impaired the seller’s security interest by demolishing the building.

The trial court granted summary judgment for the individual defendants and ruled that the purchasers could be liable for waste only to the extent that they did not pay property taxes on the property. It reasoned that because of California’s anti-deficiency statute, there could be liability only for “bad faith” waste. It considered “bad faith” waste to be waste that is the result of “recklessness,” “intentional” or “malicious conduct.” It ruled that the demolition of the buildings was not in “bad faith,” because, even though the development project never came to fruition, it was part of the intended improvement project.

In the ensuing appeal, the Court of Appeal recognized that California’s anti-deficiency statutes barred recovery by the sellers for anything but “bad faith” waste. It then held that as long as the demolition did not occur solely or primarily as a result of the economic pressures of a market depression, the purchasers could be liable for “bad faith” waste.

The court noted:

For purposes of determining liability for waste, it is not dispositive that defendants demolished the building as part of their effort to develop the property and thus (presumably) to add value to it. Indeed, defendants may have had the best of intentions, but that fact alone does not entitle them to escape liability for waste. The pertinent question is whether the demolition of the building, which is what the [sellers] claim impaired the value of the property as security for the note, was caused by the economic pressures of a market depression.

The court observed that there was evidence that the defendants demolished the existing buildings prematurely, i.e. before they had adequate financing for their project and that the loss was due to bad planning rather than economic pressures of a market depression. Thus, the defendants were not entitled to a summary judgment.

*****

Expert Testimony Was Not Admissible On The Question Of A Homeowner’s Reasonableness In Shooting An Intruder

Burton v. Sanner
(Cal. Ct. of App., 4th Dist.), filed June 21, 2012 

Gary Sanner was sued for personal injuries and for wrongful death resulting from an incident in which he shot an intruder into his home and wounded others who had accompanied the intruder.

At trial, the trial court permitted the plaintiffs’ designated expert, a retired police officer, to opine on the reasonableness of Sanner’s conduct. The expert testified about how police are trained to use deadly force only as a last resort and how they are trained to try to pacify a situation. He ultimately opined that Sanner’s conduct was unreasonable.

The jury found Sanner liable.

In the ensuing appeal, the Court of Appeal reversed and remanded. It found that the trial court abused its discretion in permitting the expert to testify and that it was prejudicial.

A trial court’s determination that expert testimony is admissible is reviewed for an abuse of discretion. Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason.

As to the defense of necessity, or self-defense, the California Supreme Court has explained:

[A]cts that are intended or likely to cause serious injury are not categorically wrongful in character and do not inevitably result in liability. For instance, a person is privileged to use “[a]ny necessary force’ to protect or defend oneself or one’s property from ‘wrongful injury.” The right to use force against another has long been limited by the condition that the force be no more than “‘that which reasonably appears necessary, in view of all the circumstances of the case, to prevent the impending injury.’” When the amount of force used is justifiable under the circumstances, it is not willful and the actor may escape liability for intentionally injurious conduct that is otherwise actionable. But if force is applied in excess of that which is justified, the actor remains subject to liability for the damages resulting from the excessive use of force.

Generally, an expert’s opinion is admissible when it is related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. Also, testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. However, where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates. When an expert’s opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them.

Plaintiff’s expert did not aid the jury. His testimony was based on what a trained police officer should or should not do in a critical situation and there was no evidence Sanner was trained as such. Moreover, he was trying to supplant the jury’s role in deciding whether, under the circumstances, Sanner reasonably feared for his well-being and acted appropriately.

By permitting the expert to testify, the trial court prejudiced Sanner. Since Sanner had asserted – and correctly so – the issue was not one for experts, he had not designated or called an expert. As such, the plaintiff’s expert’s opinion was unchallenged. Additionally, the fact that Sanner did not even challenge it would have led the jury to conclude that he could not challenge it. That would have given it undue importance in the eyes of the jury.

The court rejected the cases on which the plaintiffs relied to argue that expert testimony was regularly used in shooting cases. It pointed out that such cases were police shooting cases, where testimony as to police training and procedures is relevant.

*****

An Online Filing Can Satisfy The Requirements Of A Verified Complaint

Rickards v. United Parcel Service, Inc.
(Cal. Ct. of App., 2d Dist.), filed June 19, 2012 

George Rickards sued United Parcel Service, Inc. (UPS) for violating the Fair Employment and Housing Act (FEHA) (Gov. Code section 12900, et seq.). The trial court granted UPS’s summary judgment in favor of UPS. It did so on the sole ground that Rickards did not file a verified complaint with the Department of Fair Employment and Housing (DFEH) and thus failed to satisfy this jurisdictional prerequisite for filing a lawsuit under FEHA.

The Court of Appeal conclude that the complaint Rickards’ attorney filed through DFEH’s online automated system was sufficient under FEHA.