YOU BE THE JUDGE! An Update On California Case Law

YOU BE THE JUDGE!An Update On California Case Law Bob Tyson, Esq. Tyson & Mendes LLP

OUTLINE OF PRESENTATION • YOU WILL BE PROVIDED FACTS • YOU MUST DECIDE HOW TO RULE • AREAS OF LAW: • Statute of Limitations • Summary Judgment • Premises Liability • Real Estate

STATUTE OF LIMITATIONS Plaintiff used Fen-phen in 1997. After seeing her attorney’s television commercial, she contacted the attorney in June of 2002. She filed her lawsuit against pharmaceutical co. in July of 2003. Indevus filed a motion for summary judgment, contending the plaintiff’s complaint was barred by the statute of limitations. The pharmaceutical co. contended the SOL began to run when the dangers of Fen-phen were publicized.

YOU MAKE THE RULE THE SOL RUNS WHEN: • THE DANGERS OF FEN-PHEN WERE PUBLICIZED TO THE GENERAL PUBLIC • WHEN YOU SEE YOUR LAWYER’S AD ON LATE NIGHT TV • WHEN YOU ACTUALLY REALIZED THE DRUG WAS NOT WORKING (i.e. You are dead or still fat)

THE LAW IS: WHEN YOU SEE YOUR LAWYER’S AD ON LATE NIGHT TV! NELSON V. INDEVUS PHARMACEUTICALS, Inc. (2006)142 Cal.App.4th 1202, 48 Cal.Rptr.3d 668

SUMMARY JUDGMENT MOTION PLAINTIFF HOMEOWNERS ASS. ARGUED DEFENDANT’S SJM SHOULD BE DENIED PURSUANT TO CCP SECTION 473c subd.(h): “FACTS ESSENTIAL TO JUSTIFY OPPOSITION MAY EXIST BUT CANNOT, FOR REASONS STATED, THEN BE PRESENTED” THEIR REASON: NOT DESIGNATED OR DEPOSED EXPERTS YET

YOU MAKE THE RULE • DENIED: REASON OF NO EXPERTS IS COMPLETELY NONSENSICAL • GRANTED: PLAINTIFF SHOULD AT LEAST BE ALLOWED TO CONDUCT BASIC DISCOVERY TO HEAR A CASE ON ITS MERITS • PLAINTIFFS SHOULD BE THANKFUL WE DON’T SEND THEM BACK TO ENGLAND AND MAKE THEM PAY FOR ALL OF THEIR LOSER LAWSUITS!

THE LAW IS: PLAINTIFF’S REQUEST FOR A CONTINUANCE OF THE SJM BECAUSE OF NO EXPERT DEPOSITIONS IS COMPLETELY “NONSENSICAL” Cheviot Vista Homeowners Ass'n v. State Farm Fire & Cas. (2006)143 Cal.App.4th 1486, 50 Cal.Rptr.3d 1

BORED?

PREMISES LIABILITY A 15-year-old girl went to a sleepover at a friend's house and drank too much. Without permission from either her parents or the host parent, she left the house in the company of a girlfriend and some boys from school to hang out at the house of one of the boys, where she alleges she was brutally raped by the boys.

ISSUE IS THE HOST PARENT LIABLE IN TORT FOR THE TRAGIC INJURIES OF THE 15-YEAR-OLD GIRL?

YOU MAKE THE RULE • HOST MOTHER HAD A DUTY TO PROTECT A MINOR INVITEE FROM CRIMINAL HARM • THE ALLEGED ASSAULT WAS NOT FORESEEABLE AND HOST MOTHER THEREFORE OWED NO DUTY • PREMISES LIABILITY FOR A LANDOWNER EXTENDS TO ANY “CONCEIVABLE” HARM

THE LAW IS: BASED UPON WHAT THE PROPERTY OWNER KNEW OR SHOULD HAVE KNOWN, THE RISK WAS NOT FORESEABLE AND NO DUTY WAS OWED TO PLAINTIFF TO PROTECT HER FROM RAPE Margaret W. v. Kelley R. (2006) 139 CA4th 141, 42 CR3d 519.

SALE OF REAL ESTATE Homeowners filed action against their brokers for failing to disclose structural termite damage that caused homeowners emotional distress and pregnant wife to develop gestational diabetes. Damage so bad, uninhabitable. Brokers moved to compel arbitration pursuant to provision in purchase agreement.

ISSUE WHETHER EXCLUSION OF BODILY INJURY CLAIMS FROM BINDING ARBITRATION ALLOWS THIS CASE TO GO TO TRIAL, AS OPPOSED TO BINDING ARBITRATION

YOU MAKE THE RULE • EMOTIONAL DISTRESS IS BODILY INJURY AND SHOULD NOT BE FORCED TO BINDING ARBITRATION • THE PARTIES DID NOT INTEND FOR EMOTIONAL DISTRESS TO BE BODILY INJURY SO ARBITRATION IT IS • LAY OFF THE DONUTS WHEN YOU ARE PREGNANT

THE LAW IS: EMOTIONAL DISTRESS AND DIABETESARE NOT THE TYPES OF BODILY INJURY THE CONTRACTING PARTIES WOULD REASONABLY EXPECT TO FALL WITHIN THE SCOPE OF THE EXCLUSION. Gravillis v. Coldwell Banker ResidentialBrokerage Co. (2006) 143 Cal.App.4th 761, 49 Cal.Rptr.3d 531

CLOSING ARGUMENT THE END!

YOU BE THE JUDGE! An Update On California Case Law