Obtained Terminating Sanctions and Award in Excess of $32 million
On February 6, 2014, Rick Linkert and co-defense counsel secured “Terminating Sanctions” and a total award of more than $32 million. They have been collectively sued for more than $80 million by Cal Fire and 5 groups of private landowners. This historic result was the last in the series of trial court rulings by Judge (Ret.) Leslie C. Nichols sitting by appointment of the Chief Justice of the California Supreme Court as “judge for all purposes”. On July 26, 2013 the three groups of defendants sued in six consolidated cases designated “complex litigation” obtained dismissal of all actions on the eve of trial. The defendant groups were Sierra Pacific Industries; a group of Landowners known as the Walker family Landowners and their forester, W.M. Beaty; and Howell’s Forest Harvesting. Rick Linkert was the lead trial counsel for Landowners/Beaty. Sierra Pacific was represented by Downey Brand (lead trial counsel – Bill Warne; Howell’s was represented by Rushford & Bonotto (lead trial counsel – Phil Bonotto). In spite of potential conflicts arising from indemnity claims, the defendant groups were able to present a united defense and defeat what they all believed was a fraudulent and corrupt investigation and prosecution by Cal Fire. The six consolidated cases were dismissed following a ruling that Cal Fire had no statutory basis to sue Sierra Pacific or Landowners/Beaty as none conceivably started the fire. All defendants (including Howell’s, whose operator was accused of starting the fire when the metal track of a bulldozer allegedly struck a rock) were dismissed when all plaintiffs were unable to make a prima facie showing of both negligence or that any alleged negligence caused the fire to escape Landowners’ property.
Following the dismissals, defendants filed a series of motions based upon the egregious conduct of Cal Fire and its investigators. These motions sought terminating sanctions for discovery abuses (a third basis of dismissal) and both attorneys’ fees and all expert fees from the inception of litigation. On February 6, 2014, following the filing of a massive series of briefs and a contentious two day hearing, Rick Linkert and co-defense counsel succeeded in recovering all fees and costs and sanctions and under all other theories alleged. Judge Leslie C. Nichols issued a scathing 26 page “preface order” and adopted defendants’ 58 page proposed order, finding that “Cal Fire’s actions initiating, maintaining and prosecuting this action, to the present time, is corrupt and tainted.” Judge Nichols proceeded by adjusting the total to more than $30 million to punish Cal Fire and state lawyers who represented the agency as well as to protect the integrity of the Court. Amongst the many remarks by the Court is the following: “Cal Fire and its counsel engaged in a stratagem of obfuscation that infected virtually every aspect of discovery in this case. The pattern and practice of disregard began during the discovery process and continued after this Court entered judgment. The repeated and egregious violations of the discovery laws not only impaired defendants’ rights, but have ‘threatened the integrity of the judicial process’”. Mr. Linkert recovered $6.7 million in attorneys’ fees and expert witness fees for the Walker Family and W.M. Beaty. Below is a table of fees:
Cal Fire has appealed the July 26, 2013 dismissals. It remains to be seen if Cal Fire appeals the February 6, 2014 orders.
Favorable Settlement in Wrongful Death Case
Decedent was a young husband and father of an infant daughter. His wife was pregnant with their second child at the time of the accident. The decedent was killed as a result of a head-on collision in a construction zone. The adverse driver failed to adjust to a temporary lane change and barrier configuration that was claimed to constitute a dangerous condition. Following settlement for the adverse driver policy limits, plaintiffs filed suit against the construction general contractor, the project engineer, and the County of Sacramento. The firm was retained to defend the general contractor and the County, pursuant to contractual indemnity. The decedent was without fault and defendants were exposed to joint and several liability for economic damages. Plaintiffs claimed a verdict potential of $5-6 million. The case settled for $160,000, paid on behalf of the general contractor and the County.
Favorable Settlement in Permanent and Severe Brain Injury Case
Plaintiff sustained a serious, permanent brain injury as a result of a head-on collision on a two-lane levee road in the City of Sacramento. Plaintiff was without fault as the impact occurred entirely in her lane of travel. The adverse driver was killed instantly and had a minimal insurance policy. Plaintiff sued the City based upon a multi-faceted “dangerous condition” theory. Prior to our retention, the City lost a MSJ. The evidence confirmed a profound, permanent brain injury that left her with a variety of cognitive deficits, vocal cord paralysis and other speech dysfunction, and a host of orthopedic injuries. Defense experts viewed her as being a risk for premature dementia and agreed with 99% of plaintiff’s proposed life care plan. It was also determined by defense experts that plaintiff would be unable to work, was in need of immediate support in the form of life coaching, and would likely require 24-hour care as she aged. Plaintiff’s expert team contended that she required 24/7 supervision. She lost custody of her three children because of her inability to care for them. The claimed economic damages were in excess of $10 million – the principal components included past medical expenses in excess of $1 million, a life care plan in excess of $6.6 million, and lost future wages. A finding of 1% fault would have resulted in a joint and several judgment for all economic damages. The case settled for $350,000.
Settlement in 12,000 Acre Wildfire Case
A defective electrical splice made by the predecessor of a large energy company shorted, resulting in a 13,000 acre wildfire. While liability was not formally conceded, the defense of the numerous claims was focused on the assessment of reasonable damages and conducting settlement negotiations. Litigation was commenced on behalf of 20 private land owners and public entities; the initial damages claimed were in excess of $90 million. The firm assembled a team of damages experts to assess diminished property values, timber and other resource damages, remediation (including restoration of “view corridors” for homeowners), and a host of ancillary damages being claimed. Also, the firm filed a motion for summary judgment on a procedural issue, which was pending at the time of mediation. Despite the initial claim of $90 million in damages, the case settled at mediation for $11.9 million.
Settlement in Propane Explosion case
This case arose as a result of a propane explosion that took place at an apartment complex on the West Shore of Lake Tahoe. The plaintiff was employed as a plumber by co-defendant Grady Plumbing and was in the process of replacing an old hot water heater in a duplex owned by other co-defendants. The cause of the explosion was traced to a cracked propane pipe servicing the hot water heater. The force of the blast destroyed the duplex and blew plaintiff to the ground. He claimed that he suffered traumatic brain injury, cervical injury, and various other physical and mental/emotional injuries. Plaintiff’s theory of liability against our client, Suburban Propane, was that Suburban failed to discover a gas leak that was the subject of “propane odor” call just 10 days before the explosion. Suburban employee responded to the call. He found the pilot light unlit in the apartment of the tenant who complained of the odor, and a “low tank,” which is also associated with “propane odor” complaints. He remedied those issues. Suburban Propane claimed that the source of the propane was a sub-floor pipe that plaintiff cracked when he was imprudently trying to wrestle the old hot water heater out of a narrow closet. All parties retained the full complement of liability experts, including propane experts, accident reconstruction experts, metallurgists, plumbers and the like. In addition to general damages claimed, State Compensation Insurance Fund (SCIF) provided workers compensation benefits and had paid more that $1.4 million in medical expenses alone at the time of settlement. The defense hired a medical team, consisting of several specialty physicians (spinal, ENT, hearing), a neurologist, a psychiatrist, and a neuropsychologist. This team was crucial in unraveling the complicated presentation and the myriad of claimed symptoms – virtually all of which were ultimately viewed as contrived. As the case was heading to trial and following the completion of most of the expert discovery, the parties agreed to participate in a mediation. The defense focused on the mountain of damning evidence that had been developed against plaintiff’s credibility. The case settled for a $75K contribution on behalf of Suburban. SCIF waived the $1.4M lien in its entirety. The remaining defendants, property owners, paid $75K for a total settlement of $150K.
Favorable Settlement in Wrongful Death and Permanent Brain Injury Case
This case stemmed from a solo vehicle accident on a two-lane road adjacent to a Union Pacific Railroad right-of-way. Decedent driver, while under the influence of alcohol, crossed over the center line, then the oncoming lane, and then proceeded to strike a semi-trailer parked in the right-of-way. The driver was a young, happily married father of an infant daughter. He was a self-employed painting contractor and demonstrated a six-figure income; future wage loss was claimed to be in the range of $4 million. The young passenger (and owner of the vehicle) was also under the influence. He sustained serious head injuries and claimed that he would never be able to work again and would require 24/7 care for the rest of his life. The firm was retained to defend the driver of the tractor-trailer rig. The driver parked his loaded trailer on the right-of-way adjacent to the road. The plaintiffs contended that it was illegally parked and constituted a dangerous condition. The total damages claimed at trial were represented to be in excess of $15 million. We filed a motion for summary judgment, and while pending, the case settled for $145,000.
Favorable Settlement of Propane Explosion Burn Case
This case arose as a result of a propane explosion/fire that occurred on a drift fishing boat. Plaintiff and his son were guests of Olsen’s Guide Service and, at the time of the accident, were participating in a fishing trip on the Wynoochee River in Washington State. The drift boat was equipped with a propane heating system. The propane system had been recently replaced with parts purchased from Northern Energy. Plaintiff contended that the entire heating system was unsafe for drift boat use and that it violated a series of state and federal standards. Further, it was claimed that Northern Energy provided improper fittings. Plaintiff claimed that the system allowed the sudden escape of propane that exploded and, in turn, ignited plaintiff’s nylon poncho. The defense position was that the fittings had been used without incident on numerous prior trips and, despite a possible technical violation of various codes, propane heaters on drift boats were common and a matter of code interpretation. Plaintiff sustained severe burns to his legs that required grafting and multiple hospitalizations in Washington and California. Further, he injured his knee when he dove overboard to extinguish the fire. Olsen’s insurer paid $295,000 of the $300,000 policy limit and pursued a subrogation claim, which we defended. Prior to trial, plaintiff was firm at $750,000. At trial, we began addressing various motions in limine. Several concessions made by plaintiff’s expert witness during his pretrial deposition paved the way for further settlement negotiations, resulting in a settlement of both the personal injury and subrogation claims for $350,000, collectively.
Settlement in Alleged Breach of Fiduciary Duty Owed by Majority Partner
This case arose in the wake of the winding up of a business whose purpose was to acquire and utilize then-new laser technology to efficiently pour laser-level concrete slabs for commercial construction. There were additional investors and changes in ownership during the 6-year life of the venture. Upon disolution of the business, one partner retained an accountant to review the books and thereafter claimed that our client had embezzled a sum in excess of $1,300,000. That party filed a complaint containing numerous theories, including Fraud in the Inducement, Fraud re Operation and Management, and Embezzlement, and claiming punitive damages. A discovery plan was then implemented and designed to generate evidence that there was no validity to the claims. During plaintiff’s deposition, we elicited testimony that defeated his Fraud in the Inducement cause of action and the deposition was adjourned at his request, in order to discuss settlement. A subsequent mediation resulted in a $30,000 settlement.
Petition for Writ of Mandate in Coverage Case
We moved for summary judgment on the ground that there was no underinsured coverage in this fatal, single car accident, where our insured was killed when riding as a passenger in her own (the insured) vehicle. The trial court denied the motion for summary judgment. We petitioned the Third District Court of Appeal for writ of mandate and a stay of the action. The Appellate Court stayed the action, reviewed the matter, and ultimately reversed the denial of the motion for summary judgment, ordering the trial court to enter summary judgment in favor of our insurance client.
Defense in Appeal by Plaintiff of Successful MSJ
In successfully moving for summary judgment, we argued that the evidence generated in the case did not establish a breach of duty by our client, and even if it did, plaintiff had presented no evidence of causation. We won the summary judgment largely due to plaintiff’s failure to properly authenticate documentary evidence and by objecting to the opinions of plaintiff’s experts, for lack of foundation. Plaintiff appealed the grant of summary judgment, but the trial court’s decision was affirmed by the Third District Court of Appeal.
Appeal by Plaintiff of Defense Verdict in Rear-End Accident
Our client had rear-ended another driver, and we obtained a defense verdict after a jury trial. First, plaintiff moved for a new trial, alleging jury misconduct, among other grounds. After the court denied the motion for new trial, plaintiff appealed. The Third District affirmed the jury verdict on appeal.
Appeal of Successful MSJ in Right-of-Way Waiver Case
Our client had waived his right-of-way at an intersection to a driver waiting to make a left turn. That driver pulled out and collided with an oncoming motorcycle. The injured motorcylist sued the left-turning driver, who got out early on a good faith settlement, and our client, the polite driver. We moved for summary judgment on the ground that our client had no duty toward plaintiff, and the trial court granted our motion. Plaintiff appealed, but the summary judgment was affirmed by the Third District Court of Appeal.
Plaintiff filed a complaint for exposure to toxic fumes against our client. We demurred based on the statute of limitations. Plaintiff claimed the delayed discovery rule extended her filing deadline. We argued that plaintiff had notice or information of circumstances to put a reasonable person on inquiry more than two years prior to filing the complaint. Our demurrer was sustained without leave to amend. Plaintiff appealed the trial court’s ruling, but the demurrer was upheld by the Third District Court of Appeal.
Appeal of Statute of Limitations MSJ Where Tolling Alleged
Plaintiff filed his complaint 14 days after the two-year statute ran in this motor vehicle accident case. In the complaint, plaintiff pled around the statute by claiming tolling due to insanity. We moved for summary judgment on the statute of limitations ground, arguing that the evidence developed failed to establish that plaintiff was mentally deranged such that the statute should be tolled. We further argued that even if it did establish “insanity,” it was not for the necessary time period or in the right time frame. The Court granted summary judgment in our favor. Plaintiff appealed, but the judgment was upheld by the Third District Court of Appeal.
MSJ in Dillon v. Legg Case
Plaintiff was injured in a motorcycle accident. His wife’s action included a negligent infliction of emotional distress cause of action because she was a paramedic and learned of her husband’s accident through the dispatcher, but only immediately after it occurred. Under California law, the necessary elements of a bystander negligent infliction of emotional distress claim are well-defined. One requirement is that plaintiff was present at the scene of the injury-causing event, and was aware that the injury was occurring, i.e., contemporaneous observance of the injury. We moved for summary judgment, and plaintiff dismissed the claim in lieu of opposing motion.