Richard A. Cohn and Casey R. Johnson
Cingari v. Natural Health Sports Therapy, et al.Cingari, et al. v. Mid-Century Insurance Company, et al.
FAILURE TO DEFEND: A CHINK IN THE ARMOR OF THE PROFESSIONAL SERVICES EXCLUSION
This case stands for the proposition that insurers must think twice before utilizing one of their oldest and most reliable weapons: the professional services exclusion in a commercial general liability policy. In September 2013, Michael Cingari was the victim of chiropractic malpractice. He laid down on an unstable wooden treatment table that gave way when the chiropractor adjusted his spine, resulting in a traumatic disc herniation. He sued both the chiropractor (an independent contractor at the location) and the facility (which provided the table) for medical negligence. The chiropractor's malpractice coverage had lapsed. The facility had no medical malpractice insurance (due to insurance agent negligence) but tendered the claim to its commercial general liability insurer. The insurer did not investigate and simply denied defense, relying on a broad interpretation of the "professional services exclusion" in the policy that would normally exclude coverage for a medical malpractice claim. However, the insurer failed to consider whether the professional services exclusion would apply when the insured was not the one performing the service. And the insurer never knew about the instability of the table, which arguably would have triggered coverage under the policy. Cingari took an assignment of the insured's bad faith claim against the insurer in exchange for a covenant not to execute on any judgment obtained at trial. Cingari then proceeded to a bench trial and was awarded damages for his lost earnings as well as general damages far in excess of the MICRA cap. Cingari then filed suit against Mid-Century/Farmers Insurance and its sales agent. The claims against the agent were settled, but a judge ruled on summary judgment that Mid-Century/Farmers had no duty to defend due to the professional services exclusion. On appeal, that decision was reversed in 2022, and the matter was finally settled with Mid-Century/Farmers paying a generous settlement.
Dale K. Galipo, John Fattahi, Eric Valenzuela and Renee Valentine Masongsong
French, et al. v. City of Los Angeles, et al.
JUSTICE FOR A MAN KILLED BY AN OFF-DUTY POLICE OFFICER
Salvador Sanchez, an off-duty Los Angeles police officer, was holding his 1-1/2-year-old son while shopping at Costco in Corona when he was struck from behind without warning by Kenneth French, a mentally handicapped man. Sanchez dropped to the floor, announced he was a cop, pulled his LAPD- approved handgun and fired 10 shots, killing French and seriously injuring French’s parents. Prior to the shooting, French’s mother told Sanchez that her son was sick and asked him not to shoot. After the shooting, Sanchez immediately took out his police ID and showed to the nearby customers, security guards and responding police officers. Sanchez told investigators he believed French had a gun, that he had been shot and that his life and his son's life were in immediate danger, but French was unarmed and was moving away from Sanchez when he was shot. The trial judge ruled that that Sanchez used excessive and unreasonable force when he fired the shots. Although Sanchez was off duty, out of uniform and outside his jurisdiction when he fired the shots, a jury found that he had acted in the scope and course of his employment, thus making the City of Los Angeles vicariously liable for his misconduct, as he had announced himself as a police officer, was authorized and even trained by the LAPD on making arrests and using his approved handgun with a high-capacity magazine statewide while off duty, and would not have been allowed to enter Costco with a gun if he were not a police officer. When the city was denied its motion for a new trial, it appealed to the Ninth Circuit. The Ninth Circuit’s decision confirmed that an employer can be held responsible for the acts of its employees even when the employee is off-duty and in a different county. The case was settled after the Ninth Circuit’s ruling.
Genie E. Harrison, Mia Munro, Andrea Fields and Nicholas W. Sarris
McCracken, et al. v. Riot Games, Inc.
CHANGING A COMPANY’S HOSTILE WORK ENVIRONMENT FOR WOMEN
Video games maker Riot Games Inc. was sued by a class of women who contended that the company fostered a hostile work environment and toxic work culture, discriminated against women based on their gender when hiring, paid its female employees less than its male employees for substantially similar work, denied women promotions for which they were qualified, and retaliated against women who spoke up about these things. A settlement was negotiated, but the California Division of Labor Standards Enforcement and the California Department of Fair Employment and Housing both objected that the settlement sum was insufficient and did not contain terms that would bring lasting changes to sexism in the game publishing industry. The plaintiffs then hired Genie Harrison and her team, who then co- counseled with Nicholas Sarris and promptly withdrew from the settlement. After strategically working with the state agencies in additional litigation, including fighting numerous motions to compel arbitration and conducting discovery, a settlement was reached for ten times the previous amount, making it the largest pre-trial equal pay class action settlement in history at the time, on behalf of nearly 1,100 female employees and 1,300 female contract workers. In addition to the monetary settlement, Riot Games agreed to a three-year consent decree that provides for multi-million dollars in programmatic relief, all paid for by the company. The company agreed to fund diversity, equity and inclusion programs and to hire a third-party independent expert to conduct sex and gender equity analysis of the company's hiring and promotion practices. The company will also make 40 full-time engineer, quality assurance or art design positions available to qualified class members who worked as temporary contractors.
Paul A. Matiasic
Womack v. First Access Entertainment, LLC, et al.
A MUSICIAN’S DRUG OVERDOSE DEATH ABETTED BY HIS AGENCY/RECORD LABEL
Gustav Elijah “Gus” Ahr, a musician, songwriter, and model known professionally as “Lil Peep,” saw his fan base increase rapidly during his heartbreakingly short career. On November 15, 2017, Gus was discovered dead on his tour bus outside a venue in Tucson, Arizona, just 21 years old. An autopsy listed cause of death as “combined toxic effects of fentanyl and alprazolam” (common brand Xanax). Just one year prior to his death, First Access Entertainment – the talent agency and record label that oversaw his career – and others dug their claws into Gus, sweeping him up into their world of iniquity, questionable business practices, and profit-driven bad decision-making. He was treated as a commodity rather than as a human being, pushed to the extreme bounds of what someone his age and maturity level could handle emotionally, mentally, and physically. Gus’s mother sued, claiming that his death was a consequence of the unsafe environment on the tour and on the tour bus. In fact, the defendants encouraged and facilitated his drug use and knew he was under the influence of drugs on the date of his death. Never before had an artist’s management team or record label been held accountable for the rampant use of drugs in the music industry, particularly on tour. The court’s rulings in this case established for the first time that music labels and management companies have a duty in the context of drug use by recording artists and that they can’t on the one hand encourage, facilitate, and commercialize artists’ drug use, yet on the other hand disavow their involvement when an overdose happens on tour. On the eve of trial, the case was settled, leaving Gus’s music in the care of his mother and brother, and no one else. Many believe the case has been a catalyst for positive change in the music industry.
Brian J. Panish, Spencer R. Lucas, Matthew G. Freeman andDiana R. Panish
Blair and McGregor v. Moreno Valley Unified School District
SCHOOL DISTRICT TURNS A BLIND EYE TO A CHILD MOLESTER ON STAFF
For 20 years, the Moreno Valley Unified School District employed child predator Thomas Lee West as a teacher, despite having notice of numerous child molestation complaints against him dating back to 1988. After his foster child ran away and alleged molestation, West pled guilty to child endangerment and served jail time on the weekends while he continued to teach sixth grade. When the California Teachers Credentialing Board revoked his teaching credential, district employees were encouraged to write letters of support to get him credentialed again. Brady Blair and Justin McGregor were assigned to West's classroom during the 1996-97 school year. Before the end of the school year, West was sexually abusing both boys, and the abuse continued into the boys' sophomore year in high school. When the sexual abuse ended, West maintained his control over the boys through coercion and threats, preventing them from reporting their abuse. In 2003, after his high school graduation, Brady reported the abuse to the Riverside County Sheriff's Department. West was tried and found guilty; he is currently serving a 52-years-to-life sentence. As a result of the abuse, Brady and Justin suffered severe, life-long mental and emotional distress throughout their lives. When they sued the district, the defense liability expert was forced to admit the district fell below the standard of care by not firing West when it learned that he may be a child molester. A jury returned a substantial verdict, finding the district 90 percent at fault. This case has reinforced the duty of school districts to ensure they hire and retain teachers and staff who have been vetted and approved as safe to be around children. Furthermore, this case shows that school districts have a continuing duty to monitor and check the backgrounds of their teachers, so as to not allow a known predator to have supervision of minor children.
Luis A. Carrillo, Michael S. Carrillo, J. Miguel Flores, Annee Della Donna andEric J. Dubin
I.M. a minor, et al. v. Doe CHP OfficersE.W. and L.W., Minors v. State of California, California Highway Patrol and Doe CHP Officers
HE DIED AFTER TELLING OFFICERS “I CAN’T BREATHE” – 14 TIMES
In March 2020, two California Highway Patrol officers pulled over Edward Bronstein on suspicion of driving under the influence. The officers then took Bronstein to the CHP Altadena station for a blood draw to obtain evidence against him. At the station, at least five officers held Bronstein on the floor while pressing against his back while a nurse took a blood sample. A CHP supervisor was present and merely observed and did not order the officers to stop, or to put Bronstein upright. Bronstein had his hands handcuffed behind his back. He told officers he would consent to the blood draw, but the officers continued to hold him down. Bronstein yelled “I can’t breathe!” at least 14 times; one officer called out that Bronstein was turning purple. Nevertheless, the officers continued to hold Bronstein down while the nurse continued to draw the blood. Bronstein lost consciousness, and the officers and the nurse placed him upright, slapping his face instead of beginning CPR. After he did not respond, the officers finally began CPR, but it was too late. Bronstein was pronounced dead approximately four hours after his initial encounter with the CHP. The Los Angeles County medical examiner concluded in the autopsy report that Bronstein’s cause of death was “acute methamphetamine intoxication during restraint by law enforcement.” Members of Bronstein’s family filed a civil rights claim for wrongful death damages for excessive use of force. The CHP would not release video of the incident until ordered to do so by the court, after the plaintiffs’ legal team sought the video through discovery but also through a California Public Records Act request and lawsuit pursuant to the new California peace officer transparency laws. A significant financial settlement was achieved. Bronstein’s death prompted the CHP to change its policies to prevent officers from using techniques or transport methods that involve a substantial risk of positional asphyxia.
David M. deRubertis, Susan Rubenstein and Patrice L. Goldman
Callahan v. Marriott International, Inc.
EMPLOYER WOULDN’T ACCOMMODATE LONGTIME EMPLOYEE’S PARAPLEGIA
Dan Callahan worked for the San Francisco Marquis Marriott for 30 years as a concierge. Twenty-five years into his employment, Dan became an incomplete paraplegic as a result of an epidural injection gone bad; his doctors thought he would never work again, but he persevered and was able to return to work a year after the incident. When he returned, he required simple reasonable accommodations. In his fifth year back at work, the hotel underwent renovation that changed the concierge's workstations. Dan’s new workstation did not reasonably allow for seated work, which he required. For the next nine months, Dan struggled to get Marriott to modify the workstation, until he made the difficult decision to quit working at Marriot after 30 years, given the refusal to accommodate by modifying the workstation. Six months later, Marriott laid off, and didn’t rehire, all its concierges during the COVID pandemic. Dan also had an underlying heart condition that would not have allowed him to go back to work anyway, so the lawsuit over Marriott’s failure to accommodate his disability did not seek compensation for lost wages. Rather, the attorneys argued that the ordeal aggravated Dan's underlying chronic pain condition relating to the paraplegia, reactivated his post-traumatic stress disorder that had been in remission for years following his spinal cord injury that caused it in the first place, and ultimately contributed to the downward spiral of his preexisting heart condition. Senior Marriott executives admitted during trial that Dan’s workstation after the remodeling was inadequate. A jury returned a record-setting verdict, most of which was punitive damages. When companies follow the accommodation laws, good workers are able to remain employed and productive, despite their disabilities. The jury’s message was clear: treat disabled workers properly, and provide them simple accommodations when needed, or you will have to answer to a jury.
Jennifer R. Johnson, Susan D. Garbutt and Case C. Barnett
Kim v. Doe ER Doctor and Doe Hospital
ATTORNEY’S INTUITION EXPOSES COVER-UP OF MISSED DIAGNOSIS LEADING TO DEATH
41-year-old Aaron Cua went to the emergency department with sudden onset of severe chest pain and significantly abnormal elevated heart and respiratory rates. He was sent home after less than 45 minutes when a heart attack was ruled out. He had no fever, skin changes or other symptoms at that time. Two days later, Cua went back to the same emergency department in critical condition from necrotizing fasciitis, a rare but life-threatening infectious disease, more commonly known as flesh-eating bacteria. He died the next day, leaving behind a young widow and three children under the age of six. Several attorneys rejected this medical malpractice case against the hospital and emergency physician who first examined Cua because it did not appear the doctor had breached the standard of care. But Jennifer, a former nurse, had a hunch that the doctor altered her medical report for the initial visit. After a hard-fought battle, Jennifer obtained the audit trails for Cua’s electronic medical records. Those, along with phone records, established that when Cua returned, and it was clear the diagnosis of necrotizing fasciitis was missed two days earlier, the director of the ER called the defendant doctor at home. While they were on the phone and Cua was in surgery fighting for his life, the defendant doctor accessed Cua’s records from her home iPad and modified her chart note to cover up liability for her missed diagnosis. Jennifer and her team’s skill and tenacity exposed the cover-up and falsehoods to obtain justice for their clients. What had been a seemingly impossible case was settled for a substantial amount at mediation. But before that, the widow told her friends and family that she already had everything she wanted from the case, because Jennifer uncovered the truth about what happened to her husband.
Robert E. Cartwright, Sr. Award
In recognition of excellence in trial advocacy and dedication to teaching trial advocacy to fellow lawyers and the public.
Holly Boyer
Marvin E. Lewis Award
In recognition of continued guidance, loyalty, and dedication, all of which have been an inspiration to fellow attorneys.
William D. Shapiro
AWARDS DINNER INFO
HEALTH & SAFETY
CANCELLATIONS