John Farmer successfully defends Traumatic Brain Injury case

John Farmer obtained a highly favorable jury verdict in a claimed traumatic brain injury case arising from a low to moderate speed rear-end auto accident.  In Maldonado v. Storey, et al., plaintiff was a passenger in a car stopped for a red light, when it was rear-ended at a claimed speed of 5-7 MPH by a commercial delivery van.  Liability was admitted at trial.  Plaintiff claimed to have suffered a traumatic brain injury which would require lifelong care.  Plaintiff also claims the injury caused her to lose her prospective career as a singer/songwriter.  Defense experts testified that plaintiff sustained at most a Grade I concussion which should have resolved with appropriate care within 3 to 6 months, and that plaintiff’s current disability represents depression and anxiety due to underlying rheumatoid arthritis and a related chronic pain condition.  Plaintiff’s demand to settle prior to trial was $775,000, CCP 998.  The defense served a CCP 998 Offer in the amount of $75,000, later increased to $150,000.  Plaintiff’s counsel asked the jury to award $7,800,000.  The defense asked the jury to consider awarding $35,500 - $45,500, or they could consider awarding less.  The jury (10-2) returned a verdict at $29,000, with the two dissenting jurors later stating they had voted to award less.

FC&F proudly welcomes Associate Attorney Olivia Miner

FC&F proudly welcomes Olivia Miner as an Associate Attorney.  A law clerk before passing the Bar and being admitted to practice law in December 2015, Olivia returns to the firm to embark on what promises to be a bright future as a litigator.  Rapidly gaining experience from exposure to a wide array of cases, Olivia approaches the cases she works on with the zeal of a newer attorney, yet with a pragmatic approach respected by opponents and appreciated by her clients.  Olivia presently focuses her practice on auto and trucking Liability, premises liability, and contractual disputes.

FC&F proudly welcomes Associate Attorney Kathryn Holbert

FC&F proudly welcomes the return of Kathryn Holbert to our Las Vegas office. Kathryn was an outstanding young Associate at FC&F following her graduation from University of Nevada, Las Vegas School of Law and 2006 admission to the Nevada Bar. For a legal experience beyond civil litigation, Kathryn left FC&F to practice in the area of bankruptcy. We now welcome Kathryn back to FC&F, where she will once again provide professional representation of the highest quality to our Nevada clientele.

Jason Murphy Becomes FC&F Partner

Jason Murphy joined FC&F as a Senior Associate on February 1, 2013, and clients immediately began benefitting from Jason’s quality consulting, representation and litigation services. Contributing to the office environment as well, it was only a short time before Jason was elevated to Partner, a change that became effective February 1, 2014. We welcome Jason to the Partner ranks at FC&F and look forward to continued success on the legal, management, and mentoring fronts.

John Fedor Obtains Quick Unanimous Defense Verdict in Premises Liability Case

John Fedor recently completed a 5-day trial in Los Angeles County Superior Court - East District - Pomona South Courthouse that resulted in a quick unanimous defense verdict. While walking through a parking lot of a Los Angeles hotel during a rainstorm, plaintiff fell in the area of a fire lane curb re-painted red the prior day. Plaintiff sustained a spiral fracture of his left leg just above his ankle, had conservative treatment, and claimed that he now needed surgery and rehabilitation. Plaintiff requested the jury award at least $700,000 for his past and future medical expenses, including surgery, and lost profits as he was unable to plant a crop on his Argentina farm for one season during his rehabilitation. A mere 30 minutes after first leaving the jury box to begin deliberations, the jury reached a defense verdict on the issue of liability; polling revealed a unanimous 12 - 0 verdict.

Post-trial discussions with jurors revealed that cross-examination of the plaintiff and plaintiff’s biomechanical engineer were key and left the jury wondering how and why the plaintiff fell. Further, jurors stated that that however plaintiff fell, the defense witnesses showed that the fall was not due to any dangerous condition created or maintained by the hotel. While never reaching the damages issues, the jury indicated they had accepted the defense arguments that plaintiff’s damages were minimal and did not include lost profits, and that future surgery was unnecessary.

John Farmer Honors: ABOTA Election and Community Representative

FC&F is pleased to announce that John Farmer was recently elected to the San Diego Chapter of the American Board of Trial Advocates (ABOTA). Membership in ABOTA is by invitation only. Nominees must meet high personal character requirements and be of honorable reputation in addition to demonstrating proficient trial skills by meeting ABOTA’s trial experience criteria. Mr. Farmer is honored to join this select and prestigious group of San Diego litigators.

Mr. Farmer has also recently been elected as Area 7 representative to the Tierrasanta Community Council, further adding to his resume of volunteerism and community service.

FC&F Proudly Welcomes Jason Murphy

FC&F is proud to announce that Jason Murphy, formerly a Partner at Campbell Murphy of San Diego, joined the firm beginning February 1, 2013. A 2001 University of San Diego School of Law graduate, Jason provides quality and cost-effective consulting, representation and litigation services to clients ranging from individuals and small businesses to large corporations and institutions in the areas of personal injury, construction defect, business, employment, and corporate law in cases throughout California and Nevada.

FC&F Obtains Summary Judgment in Insurance Coverage Action

Michele Angeles was recently successful in a case-dispositive Motion for Summary Judgment in the Butte County Superior Court. The insureds were California residents, who maintained an auto policy issued and delivered in California, which described a vehicle garaged and primarily operated in California. The policy included uninsured motorist coverage. The insureds were in Arkansas, driving a rental car when they sustained significant injuries in an auto accident with an uninsured motorist. They received some initial emergency care in Arkansas, then returned to California where they continued their treatment. They eventually engaged Arkansas counsel to represent them on a UM claim against the insurer. Both the policy and California statute afford a two year accrual period for UM claims, within which the insured must formally demand arbitration or file suit against the uninsured motorist, if the claim is not resolved by settlement. After the two year period expired with the insureds having failed to protect the two year accrual period, FC&F was retained by the insurer to provide a coverage opinion, in view of the contention by the insureds’ Arkansas counsel that Arkansas has a three year period of limitations for UM claims, which controlled over the California two year period, presenting a conflicts of laws question. FC&F filed a Declaratory Relief Action in California and, following written discovery, prosecuted a Motion for Summary Judgment. Meanwhile, Arkansas counsel for the insured filed an action for UM benefits against the insurer in Arkansas. While our MSJ was pending, the insureds’ counsel filed a Motion for Summary Judgment in the Arkansas action. Ms. Angeles, in the face of a tentative ruling deferring a decision in California pending the outcome of the Arkansas motion, presented a persuasive oral argument which caused the trial court to reverse its tentative ruling, and find in favor of the insurer in California.

Tiffany Steward Pops Policy and Client Receives Award Exceeding Limits

Tiffany Steward recently settled an injured client’s personal injury claims for an amount in excess of the at-fault party’s available insurance policy limits. A rear-end accident resulted in a shoulder injury necessitating surgery. Ms. Steward submitted a policy limits settlement demand containing a complete and thorough factual and legal analysis supported by facts and documentary evidence to show the client’s damages would exceed the available $100,000 policy limits. Defendant did not accept the demand. At mediation Ms. Steward persuasively argued the completeness of the initial demand package and that the Defendant’s failure to accept the policy limits demand exposed the Defendant to a likely judgment in excess of the policy limits. Several days of post-mediation discussions directly with the Defendant’s insurer led to the insurer agreeing to pay significantly in excess of its insured’s policy limits.

John Farmer & Lisa Freund Defend Contractor/SDG&E Against $17M - $24M Jury Demand

John Farmer and Lisa Freund recently teamed together in the successful defense of a contractor and SDG&E. In Durant v. SDG&E, et al., plaintiff was riding his motorcycle to work on Coronado when he came to a line of traffic stopped by a construction flagger to allow a contractor to offload a Bobcat from a flatbed and drive it across the street into the local public utility power substation. Plaintiff, well back in line, was passing stopped traffic on the right when the unloading operation was completed and the flagger released traffic. Plaintiff, still not at the front of the line, kept passing now moving vehicles on the right. The driver of a pickup truck that was first in line moved forward, then began to turn into a curbside parking space. Plaintiff collided with the side of the truck.

Plaintiff initially sued only the truck driver, and settled that case for the driver's minimum limits policy. He then sued the public utility and the construction contractor, alleging that the equipment offload was done in a negligent fashion and caused the accident.

During a 6 week San Diego County Superior Court jury trial, plaintiff dismissed the public utility for a waiver of costs while a non-suit motion was pending. Proceeding against only the construction contractor, plaintiff sought to recover $350,000 in medical expenses for undisputed injuries including a scapular fracture, a mild concussion and soft tissue injuries, and for disputed injuries including mild traumatic brain injury, stroke, and a neck injury requiring future fusion surgery, and a low back injury that led to a failed disc replacement/fusion surgery requiring 5-level fusion surgery in the future. Plaintiff had not worked since the accident in 2004 and contended he would never work again. He sought past and future loss of earnings of approximately $1,000,000. Plaintiff asked the jury for between $17M and $24M, far exceeding the defense’s $500,000 settlement offer.

After two days of deliberations, the jury returned a defense verdict. Although critical of some aspects of the contractor’s performance, the jury found that the contractor was not the legal cause of the accident and was not liable to the plaintiff to any degree.

Tiffany Steward Admitted to Nevada State Bar

Tiffany Steward followed her November 2011 passing of the California State Bar with her successful completion of the Nevada State Bar Examination. Tiffany joins Partner Anthony Case in providing FC&F clients in Nevada with a vast array of litigation and transactional services in state and federal courts throughout Nevada.

Summary Judgment for Motel Operator in Third Party Assault Case

John Fedor and Keith Ciceron obtain summary judgment in favor of a motel operator against claims of liability for a serious third party criminal attack against a motel patron. The patron was walking to his room when his assailant joined him and the two talked causally in a friendly manner until the patron stopped at his room’s door. The assailant then told the patron this was a robbery, allegedly stuck a gun in the patron’s back, and followed the patron inside the room. Once inside, the assailant used his hands and fists to attack the patron and force him into the bathroom, where he then used a towel rack torn from the wall to stab plaintiff and porcelain from a toilet tank top broken during the assault to slash the patron’s hands, scalp, and throat. The patron sustained multiple serious lacerations that required more than 300 stitches and scar revision surgery. Medical expenses were approximately $175,000 with unspecified lost wages. The patron’s wife filed a loss of consortium claim. The Fresno County Superior Court judge agreed with the defense arguments and found that the facts developed by defense counsel and the applicable law established as a matter of law that the third party attack was not sufficiently highly foreseeable to impose a duty on the motel operator to protect plaintiff against the alleged attack and injuries.

Anthony Case Obtains Unanimous Defense Verdict in Fraud Case

Anthony Case obtained a unanimous defense verdict on a fraud case in downtown Los Angeles Superior Court. In Fishburne v., Davis, et al., Los Angeles County Superior Court Case No. BC417582, Hattie Fishburne, mother of actor Laurence Fishburne, was involved in an automobile accident with Adrin Davis and claimed personal injuries and an inability to return to work that forced her to retire. Fishburne accepted insurance policy limits to settle her personal injury case. Fishburne later sued Davis and his insurer, Infinity Insurance Company, for allegedly fraudulently concealing assets and making intentional misrepresentations to induce her to accept in settlement far less than her claim was worth. After a five day jury trial, the jury returned a unanimous defense verdict following less than 1 hour of deliberation.

Defense Verdict in Rear-end Accident Case

John Farmer was recently successful in obtaining a defense verdict on behalf of his client in a rear-end freeway accident case, tried to a jury in Victorville. Plaintiff contended she had been travelling in the #1 lane of the I-15 freeway for several miles and was slowing for traffic ahead, when her vehicle was rear-ended by the defendant’s vehicle and pushed into the vehicle ahead. The defendant contended plaintiff made an abrupt lane change in front of his vehicle just before the collision, then braked hard, giving him insufficient time to slow or stop to avoid the collision. Plaintiff had extensive medical treatment, including multiple MRI’s, three epidurals and two “percutaneous disc decompression (PDD)” surgeries performed by pain management specialist Dr. Van Vu of Fountain Valley, all on referral by her attorney. Plaintiff’s trial expert, neurosurgeon Jeffrey Gross, MD, testified plaintiff’s medicals of approximately $120,000 were reasonable, necessary and related to the accident, and that plaintiff was a candidate for future cervical and lumbar fusions, due to the accident, at a projected cost of $350-400,000. A loss of present and future earnings from a job as a forklift operator at Home Depot, was also alleged. Defense expert, orthopedist Steven Nagleberg, MD, testified that plaintiff should have had medical treatment for a few weeks, valued at around $4,000. He testified the treatment with Dr. Vu was not medically indicated or necessary, and plaintiff is not a future surgical candidate. The jury disbelieved the version of the accident provided by plaintiff and her witness, and commented after the verdict that had they found liability, they would not have awarded much money to the plaintiff.

Successful Motion for Summary Judgment in Dog Attack Case

John Fedor and Brittney Lee successfully moved for summary judgment in favor of a motel operator and its employee against claims that a motel resident’s dog’s attack caused another guest to fall and sustain multilevel disc herniations and radiculopathies that required treatment and surgical repair estimated at $75,000 - $120,000 and caused lost wages of approximately $40,000 - $50,000. The Los Angeles County Superior Court judge agreed with the defense arguments and found that the facts developed by defense counsel through thorough investigation and discovery and applicable law established as a matter of law the absence of a duty on the part of the motel operator and its employee to protect plaintiff against the alleged attack and injuries.

Successful Motion for Summary Judgment in Serious Off-Road Accident Case

John Farmer and Lisa Freund again teamed together in the successful defense of a significant off-road injury case by way of a Motion for Summary Judgment. The accident occurred on Competition Hill at Buttercup Campground in Winterhaven, CA, in Imperial County. Plaintiff’s ATV collided with the defendant’s sandrail, resulting in a 2-3 month hospitalization for injuries consisting of multiple rib fractures on the left, ribs 9 through 12; thoracolumbar spine fractures, T11 and T12; left ankle fracture with open reduction and internal fixation; a pneumothorax and a hemothorax with a resulting left tube thoracostomy. His claimed medical expenses were approximately $500,000. The loss of earnings claim was uncertain, but plaintiff had not worked since the accident. The principal defense rested on the theory of primary assumption of the risk applicable in the off-road accident setting under the case of Distefano v. Forester (2001) 85 Cal.App.4th 1249. Following contested oral argument, the trial court found the defense applicable and granted summary judgment for the defendant sandrail operator.

Defense Verdict Against Border Patrol Agent Who Alleged Assault

Anthony Case obtained a defense verdict on behalf of a driver of a vehicle who allegedly assaulted a Border Patrol agent during an incident at the Otay Mesa International Border Crossing. While driving home to the United States, the defendant and his wife were in their vehicle at the crossing when a heated exchange began between the wife and Border Patrol agents. Defendant’s wife exited the vehicle and was taken down by Border Patrol agents. Defendant went to assist his wife and, while getting out of the vehicle, allegedly struck plaintiff in the face. Plaintiff claimed substantial injuries, including a broken nose that caused chronic sinus infections that led to middle ear problems that required surgical intervention, a black eye, and teeth and mouth injuries with subsequent tooth loss and root canal surgeries. Plaintiff claimed past medical expenses of $18,000, up to $20,000 in future medical expenses, and $14,000 in loss of earnings. Plaintiff, whose $25,000 demand the defendant previously rejected, asked the jury for a verdict in excess of $500,000. After a 4 day trial, the jury deliberated 1 hour before returning a defense verdict.

Plaintiff’s motions for judgment notwithstanding the verdict and for a new trial were denied, and Mr. Case secured a substantial costs award in favor of his client.

Defense Verdict in "Deep Pocket" Construction Accident Case 

John Farmer and Lisa Freund recently obtained a defense verdict on behalf of an asphalt slurry contractor in the trial of a motor vehicle accident case.  Plaintiff, travelling home from the grocery store, was struck head on by a drunk driver who had crossed the center line of the roadway.  The week before, the asphalt slurry contractor had slurried the roadway, necessarily covering up the existing lane lines and double yellow line defining the center of the roadway.  The City had undertaken the responsibility for placing temporary reflective tabs on the roadway after the slurry had been applied to replace the lane markings, pending the repainting of the lines several days later.  The yellow tabs placed in the center of the roadway were alleged to have been single as opposed to double tabs and were claimed to have been spaced too far apart.  Plaintiff, who did not join the City as a defendant, claimed the temporary markings were insufficient per the Caltrans manual, confusing to drivers and contributed to the accident.  Plaintiff claimed that the slurry contractor was responsible because it had not completed its work at the site, despite the City's apparent assumption of responsibility.  Plaintiff had substantial injuries, including two shattered kneecaps with 4 open reduction surgeries, a broken rib, pneumothorax, DVT with insertion of a vena cava filter and a comminuted fracture of the right fourth metacarpal with surgery.  Agreed past medical expenses were $240,000.  The defense contended plaintiff's loss of earnings was $21,000; plaintiff claimed past and future lost earnings/earning capacity of $192,000.  Plaintiff's counsel asked the jury for $1,432,000, including $900,000 in general damages.  Prior to trial, plaintiff demanded $1,000,000 from the contractor, reduced to $850,000 by CCP 998 demand, and further reduced to $700,000 while the jury was out.  The carrier for the intoxicated driver co-defendant offered its $15,000 policy.  The carrier for the contractor offered $147,875 by CCP 998 offer, increased before trial to $200,000.  After a 2 1/2 week trial, the jury returned a verdict of $511,000 ($261,000 economic, $250,000 non-economic) and allocated fault at 85% to the intoxicated driver, 15% to the non-party City and 0% (no negligence) to the slurry contractor, Farmer Case & Fedor’s client.

Judgment (Nonsuit) Obtained in Real Estate Non-Disclosure Case

Anthony Case and Daniel Fallon successfully defended a dual agent and broker in the trial of a real estate fraud and non-disclosure case in the San Diego Superior Court in El Cajon.  In Trejo v. Brikho, et al., plaintiffs alleged fraud, realtor malpractice, breach of fiduciary duty and breach of contract with respect to their purchase of real property, and requested damages in excess of $800,000 in addition to punitive damages. Farmer Case & Fedor represented the dual agent and broker in the transaction. Plaintiffs claimed that the agent and broker intentionally failed to disclose a reciprocal driveway easement affecting the subject property, failed to disclose certain alleged defects at the residence, and failed to make certain repairs at the property that were allegedly promised. Following plaintiffs’ case-in-chief, the defense argued a Motion for Judgment.  After reviewing the moving papers and hearing oral argument thereon, Judge Halgren entered judgment on behalf of the FC&F clients.

Successful Motions for Summary Judgment in Wrongful Death Case

John Farmer and Lisa Freund were recently successful in obtaining summary judgments in a declaratory relief action in Marin County, to establish the lack of coverage for damages arising from the alleged wrongful death of the named insured under the applicable policy.  In State Farm v. Ranft, the named insured, a Pixar Studios executive, was riding as a passenger in his own vehicle, driven by a permissive user.  As the vehicle approached a bridge, it was either struck by another vehicle passing on the left over the double yellow lines, or otherwise forced to veer to the right.  The vehicle went off the bridge and into the river below.  Unfortunately, the named insured and the permissive driver died in the accident although a third passenger escaped.  The survivors of the named insured sued the other driver, the estate of the permissive driver and the State of California for multi-millions of dollars in loss of support and future income.  The State cross-complained for indemnity against the estate of the permissive driver.  The State Farm policy describing the car excluded liability coverage for "bodily injury to any insured."  In its ruling on State Farm's summary judgment motions in the DRA as to both the plaintiffs' claims in the complaint and the State's indemnity claim in the cross-complaint, the court found that the exclusion applied, such that State Farm had no duty to defend or indemnify.  Mr. Farmer and Ms. Freund continued their success in this matter in defense of the appeal. The California Court of Appeal, First Appellate District affirming the judgment in full.

Mr. Farmer and Ms. Freund continued their success in this matter in defense of the appeal. The California Court of Appeal, First Appellate District issued an unpublished opinion on January 30, 2009 affirming the judgment in full.

John Fedor Limits Plaintiffs' Recovery in Personal Injury Case

John Fedor represented Motel 6 Operating L.P. in the matter of Mary & William Butler v. Motel 6, a trip and fall case in San Diego County Superior Court.  While liability was not truly at issue, Motel 6 believed the plaintiffs' claimed damages - personal injuries with need for future surgery by Mary Butler and loss of consortium damages by William Butler - were highly exaggerated.  At trial, plaintiffs requested awards of $500,000 - $700,000 and $150,000 - $200,000, respectively.  Essentially agreeing item by item with the defense's presentation of its damages defense, the jury was out less than 2 hours before returning with the expected plaintiffs' verdict, but with awards of $69,685 and -0-, respectively.

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