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The plaintiff was a tax preparer whose business was located in a strip mall along Hacienda Boulevard. He had a wooden sign affixed to the top of his van with nuts and bolts that advertised his business, and he would park the van in the strip mall's parking lot each day so that drivers coming down Hacienda boulevard could see advertising for his business. Many other local businesses did the same or similar things, some involving more garish displays than his. However, the City of South El Monte has a sign law prohibiting vehicle signs unless they were "permanently mounted", with exceptions for certain businesses like auto dealerships, who need to put "MSRP" stickers and the likes on their cars in outdoor sales lots. The plaintiff took videos and snapshots of other business' signs, including other vehicle signs, and outlandish walk-around signs like someone dressed as the statute of liberty. Plaintiff argued that first, his sign was "permanently mounted" because it was kept on with nuts and bolts, and not taken down during the entire tax season, and the sign ordinance defined "temporary" sign as one where the intent was to keep it up for less than 45 days. Next, he argued that the ordinance was vague as to what "permanently" affixed means, and argued that a city enforcement officer walking around with a citation booklet should not be given unfettered discretion to say what vehicle signs are "permanently" affixed without any further statutory definitions to restrain him from just making up what he, personally, considered to be "permanently affixed", thereby giving him unlimited and unchallengeable power to ticket anyone he felt like. Third, he argued that his video and photos showed that the law was being unfairly applied to him only, violating the equal protection clause and amounting to selective enforcement, because of all the other temporary, garish vehicle signs and other, uglier, signage along Hacienda Boulevard that was shown in the video and photos. Finally, he argued that the law had no real rational basis and could not be defended as a proper exercise of the legislature's power to regulate for health and safety. The above were argued to be abrogations of plaintiff's free speech rights and violations of his rights under the equal protection clause of the constitution. Senior Partner Frank D'Oro prevailed at trial and the plaintiff appealed. On appeal, Mr. Lipman argued that the sign ordinance had a rational basis because it stated in the statute that it was concerned to increase driver safety by keeping people from being distracted by commercial signs. The law would also tend to increase business and prosperity in the community by getting rid of the "little Tijuana" look of homemade vehicle signs up and down the boulevard, and so render the area more attractive to upscale businesses who wanted to be associated with a more upscale image. Mr. Lipman also argued that even if the law did not fully get rid of garish signs, or measurably increase business in the short run, the law had a rational basis and could not be struck down as baseless. Further, a law does not need to have perfectly defined terms, so that "permanently affixed" is no more vague than another law upheld in another case that allows city clerks to deny building permits for uses that do not conform "esthetically" with the surrounding community. And, the fact that the city might be guilty of unintentional selective enforcement in letting some illegal signs go unpunished, does not mean a second wrong makes a right - some enforcement is better than none. There was no evidence that the city purposely targeted the plaintiff for disparate treatment. The Court of Appeal upheld each and every one of Mr. Lipman's arguments and awarded costs to the City of South El Monte in addition to upholding it's law. Wesierski & Zurek LLP has substantial experience in successfully representing public entities as to tort defense, constitutional law issues, and business and administrative matters. The Firm also has a long history of appellate experience, handled by Paul Lipman in the Los Angeles office and several attorneys in the Irvine office.
The defense focused upon the plaintiff’s own conduct. Ron was able to prove that it was, in fact, the man’s own intoxication and conduct that caused the accident. A jury took only 20 minutes to fully acquit the defendant and because plaintiff had previously failed to accept a modest settlement proposal that had been offered, he will now actually owe our client over $17,000 in costs.
Ron Zurek (Senior Partner/Los Angeles). Ron recently defended a lady in a trial where it was claimed that her car hit a man who was walking in a crosswalk, thereby knocking him down and causing him a shoulder injury that lead to surgery which, in turn, caused him to develop a frozen shoulder and serious, permanent limitations. The plaintiff presented two orthopedic surgeons to back his cause. Our client admitted the fact that her car bumped into the man while he was in a crosswalk, thus conceding negligence, but exception was taken to the contention that he was knocked down or seriously hurt. Having to overcome the fact that the man had no prior shoulder problems and that he did report promptly to an emergency room with shoulder complaints within hours of the accident, Ron was able to convince the jury that no serious injury really did result from the admitted act of defendant’s negligence. A verdict in favor of the defendant resulted. Because plaintiff had turned down a generous settlement offer before trial, he is now responsible to pay the defendant over $22,000 in costs.
For the defendants, Ron contended that the collision was not a serious one, "Tank" allegations notwithstanding. It was argued that only minor injuries were likely sustained, and that any ongoing disability was fully attributable to the plaintiff's prior back condition which was not fundamentally changed by the subject accident. The credibility of plaintiff's disability doctors, and his $18,000 of medical treatment, was very directly and successfully attacked. The jury awarded plaintiff $11,500. As the defendants had formally offered $20,000, they will now be entitled to recover costs and expert witness fees. These will amount to more than the amount of the verdict, thus the plaintiff will end up owing the defendants money. This is the fourth time in Ron's last six trials where the plaintiffs, to whom affirmative offers had been made, will end up having to pay the defendants.
In defense the contention was that the pedestrian had caused or contributed to the accident himself, and, that the medical treatment was exaggerated and largely unnecessary. The connection between the documented knee injury and the accident was also disputed. The plaintiff had demanded defendant’s full $100,000 insurance policy and a $40,000 offer had been made. In the end the jury awarded plaintiff the total sum of $14,197 in damages and then found him to have been 50% negligent in his own right, thus resulting in a net verdict to the plaintiff of $7,098.50. The low verdict amount means that the defendant will recover substantial costs and expert witness fees, likely to be more than $17,000. This will result in a final outcome where the plaintiff himself will owe a judgment, to the defendant he initially sued, of about $10,000.
In the case, Mr. Zurek's client had been driving westbound when he entered an intersection intending to turn left. He waited for oncoming traffic and ultimately, he said his light had turned to yellow before he began to turn. He was surprised to find the Plaintiff pedestrian crossing in an eastbound crosswalk. He braked but could not avoid striking him. Plaintiff insisted that he had a green/walk signal when he entered the crosswalk, and he was supported in this testimony by the only eyewitness. Negligence on the part of Mr. Zurek's client was admitted, but it was also contended that the Plaintiff and the witness were both mistaken. The pedestrian light had to have been yellow/don't walk, such that Plaintiff was partially responsible for being where he should not have been. The jury ultimately agreed with Mr. Zurek's contentions. They awarded Plaintiff just over $108,000 in damages but also found him to be 30% responsible for his own injuries. The net verdict was only $75,600. When Defendant's costs and fees are deducted from the verdict, the Defendant will owe the Plaintiff slightly over $55,000.
Ronald Zurek (Senior Partner/Los Angeles Office) recently tried the case of Truong v Cheng, a motor vehicle accident case where his defendant client admitted some negligence for causing an accident that did not seem like a very serious one. However, one year after the accident the plaintiff had a back surgery, which brought his medical bills to about $75,000, and he blamed the defendant for all of it. A plaintiff offer to settle the case for a limited insurance policy was turned down. On the theory that the plaintiff was not seriously injured and that he was perhaps partly at fault for the accident even though the defendant allegedly ran a stop sign in front of him, defendant offered him $6,700, a sum he summarily rejected. Plaintiff's neurosurgeon at trial cost $15,000 but he had trouble on cross-examination nevertheless. At the end of trial the jury awarded plaintiff $3,945, the amount of one of his medical bills before surgery, and nothing else. The jury also felt he was partially at fault for the accident, thus his net recovery was only $2,958.75.
Mark J. Giannamore
(Junior Partner/Los Angeles Office) Trial in Santa Monica; Dept. Q; Judge Lefkowitz; the demand was $150,000; the result was a defense verdict after 14 minutes of deliberation. This was an auto v. bicycle case where we argued Plaintiff ran into our car. Binding arbitration; Judge Alfano’ resulted in a defense verdict against all four claimants; demand was $15,000 per claimant. Trial in Van Nuys; Division 106; Judge Knight; Demand was $25,000. No offers extended and they were both defense verdict. Raphael v. Del Nostro: Trial in Van Nuys; Division 106; Judge Knight; Demand was $15,000. No offers were made. Defense verdict at the time of trial.
Thomas G. Wianecki (Senior Partner/Irvine
Office)
As many of the cases had the same plaintiff attorneys - the success rate deterred filings against these same companies after a period of time. In all of the cases, punitive damages were being claimed as well as a series of violations of good faith and fair dealing and violations of the insurance code.
The devastating January 17, 1994 Northridge Earthquake spawned an enormous quantity of lawsuits against insurance companies and their independent catastrophic adjusters for alleged bad faith handling of insurance claims. Wesierski & Zurek, LLP represented Americas largest catastrophic insurance adjuster corporation and individual adjusters in dozens and dozens of these lawsuits. Christopher Wesierski was successful in winning numerous demurrers as well as motions for judgment on the pleadings, without leave to amend. This resulted in the dismissal of our insurance adjuster clients from dozens of these lawsuits. The successful demurrers and motions for judgments on the pleadings also had the salutary effect of dissuading additional lawsuits against our client, inasmuch as we were litigating against the same law firms time and again. Each Northridge Earthquake lawsuit contained a claim for punitive damages against our insurance adjuster clients, as well as for a series of violations of the implied covenant of good faith and fair dealing, plus alleged violations of the Fair Claims Handling Act, which is an essential part of the Insurance Code. Thousands of lawsuits against insurance companies over the Northridge earthquake are still ongoing and have been assigned to special complex litigation judges in Los Angeles County’s Central Civil West Courthouse. By dint of our earlier successful representation of our insurance adjuster clients, none of our clients are named defendants in any of the remaining lawsuits.
Laura J. Barns (Associate/Irvine Office) recently successfully represented Pacific Specialty Insurance Company in a lawsuit alleging failure to pay "line of sight" damages by prevailing on a motion for summary adjudication of issues. The successful motion had the effect of rendering the plaintiff policyholders’ claims moot and also barred by the statute of limitations. The judge commented that the case presented a very challenging statute of limitations issue that Ms. Barns successfully argued should apply to each homeowner’s lawsuit. Therefore, the court and the jury never entertained a trial for breach of contract and breach of the implied covenant of good faith and fair dealing or insurance bad faith. The Firm has an active business practice department engaged in all manner of modern business questions. Attorneys in the Firm’s business department have recently assisted several local entrepreneurs in reviewing their business plan to select the entity model best suited for their new business, which will entail the developing and marketing of computer network goods and services across numerous states. The project also required the Firm to structure employment contracts for the new company’s internal personnel, as well as the negotiation and authoring of multiple independent contractor agreements covering services to be performed across the United States. Wesierski & Zurek’s attorneys also worked on a daily basis with the new company to implement appropriate procedures to insure its compliance with the vast array of employment requirements for new businesses in California. Attorneys from the Firm’s business department also recently worked with the owners of an international importing business to properly structure the enterprise to operate in California. Once the determination was made to utilize the corporate structure, Wesierski & Zurek’s attorneys devoted all the requisite efforts to this time intensive project to get the clients’ business up and running to the great satisfaction of the clients. Aside from organization of the entity, the Firm’s lawyers successfully reviewed and assisted in the negotiation of the lease for the company’s new business premises in order that operations could commence in a timely fashion. Moreover, our Firms’ lawyers also undertook the preparation of all appropriate non-disclosure and confidentiality agreements necessary to streamline the clients’ many consultations with other businesses offering essential cooperative services. The Firm will continue to assist the company in its developing business with the ongoing review of all of its business sales contracts. Attorneys from the Firms’ business department have recently assisted in the drafting of an employee handbook for a Southern California manufacturing company that sales its products nationwide. The project required Wesierski & Zurek’s lawyers to thoroughly review all company policies and practices in order to distill them into a comprehensive handbook applicable for all of the company’s employees. In addition, our Firm’s attorneys also worked together with clients to author the company’s requisite policy statement regarding sexual harassment. The Firm’s business department lawyers have also recently prepared numerous employer-employee agreements for several of the Firm’s clients. Those agreements have included such areas as: (1) Employee Proprietary Information and Assignment of Inventions Agreement; (2) Agreement of Services for Software Development; (3) Agreement of Services for Software Maintenance; and, (4) Intellectual Property Ownership, Confidentiality and Non-Disclosure Agreement.
In a recent business case handled by Christopher
P.
Wesierski (Senior Partner/Irvine Office), an Orange County jury found in favor of the defense where plaintiff
alleged intentional misrepresentation of facts; concealment; negligent
misrepresentation of facts; and negligence.
In the year 2008 - Mr. D'Oro obtained a defense verdict in three separate matters all within one week of each other and all decided by jury trial. Each of those cases took less than ten days. In the year 2007 - Mr. D'Oro obtained three separate jury trial wins in cases tried within one week of each other. Each of those jury verdicts resulted in a defense case as well. Congratulations Mr. D'Oro for a truly remarkable string of victories.
Frank D’Oro (Senior Partner/Los Angeles
Office) continued his winning ways with a defense verdict in Los Angeles. Holmes v. Numero Uno Market was tried between April 25, 2006 - May 5,
2006 in LA Superior Court, and resulted in a defense verdict. Plaintiff Clyde
Holmes was a 65-year old shopper at the Numero Uno Market in South Central LA
where he alleges he was injured as a result of being knocked down by a
shoplifter that store security had negligently allowed to escape. While shopping
on a Sunday morning Mr. Holmes observed store security guards take a suspected
shoplifter into custody and into a back room. According to plaintiff, the
suspect was able to flee after he was told he was going to be prosecuted because
he had detained after being taken off the sales floor. The suspect ran out of
the back room being chased by several security guards. Mr. Holmes was on the
sales floor directly in front of the back room door and alleges he was knocked
to the ground in the melee that ensued when the suspect and security guards ran
out onto the sales floor. The allegation of negligence was that the standard of
care required a shoplifting suspect be detained in a secure environment,
separated from the sales floor after apprehension.
Christopher P. Wesierski (Senior Partner/Irvine Office) and Laura J. Barns (Associate/Irvine Office) recently settled a class action brought against a loan business after filing demurrers and motions to strike for an amount that was far less than the plaintiffs had demanded.
Laura J. Barns (Associate/Irvine Office) filed a demurrer on another class action brought against an insurance company involving hundreds of other insurance company defendants and won. The client was dismissed from the lawsuit.
Wesierski & Zurek LLP has handled numerous dog bite cases. Although dog bite incidents generally impose strict liability on dog owners, The Firm has been successful in reaching favorable resolutions in those cases. One example is having brought a motion for summary judgment on behalf of the owner of property on which a dog bite occurred. Plaintiff contended the owner had notice of the vicious propensities of the dog, and as such, had a duty to protect third parties from the animal. Although the landowner was the only party in the case, our motion for summary judgment was granted as plaintiff could not establish the landowner had actual notice of the dog's vicious propensities. When representing insurance companies, Wesierski & Zurek LLP has been successful in having coverage denied when the homeowner's application does not disclose animals. Homeowner's typically cite to a line of cases holding that to rescind for a falsified application the company has to prove that the misrepresentation was material in the sense that the company would not have written the policy had it known the truth. Despite those cases, we have successfully argued another line of cases that hold any misrepresentation is material and gives the company a unilateral right of rescission. In addition, Wesierski & Zurek LLP has been able to settle cases involving significant dog bite injuries for a fraction of plaintiffs' initial demands.
Christopher P. Wesierski (Senior Partner/Irvine Office) was successful in a Santa Barbara case where he was retained to represent a dentist. The dentist was accused by three Latina office workers of terminating them on the basis that they were Latina and pregnant and unmarried. Each of them asserted that the dentist told them to "get rid of the baby" and when they refused to do so then the dentist made their life miserable. They also sued for improper hourly payments and discrimination based on race, pregnancy and being unmarried. Each plaintiff sued for over a couple hundred thousand each plus attorney fees and indicated they should be entitled to punitive damages because of the horrific conduct by the dentist. The jury found in favor of the dentist and rendered a defense verdict on all counts after a few hours of deliberation. Plaintiffs' motion for a new trial was denied and the defendant was awarded costs.
In another recent case, Chris Wesierski successfully obtained a judgment of nonsuit and directed verdict in Long Beach when a doctor was sued for sexual harassment and sexual battery and wrongful termination. Plaintiff alleged that she used to work in the doctor's office as a staff person and she was exposed to unwanted behavior by the doctor and observed improper conduct by the doctor toward others when she unexpectedly barged in on the doctor and another staff person. The court found that plaintiff did not meet her burden of proof on all counts after she rested and ordered either a nonsuit or directed verdict on multiple counts. The plaintiff was ordered to pay costs and attorney fees and those are now being collected. Thomas G. Wianecki (Senior Partner/Irvine
Office) has recently accomplished back to back defense verdicts in two unusual
and dangerous dental malpractice trials.
Maclyman v. Firestone was a complex
orthodontic malpractice case. The patient was in braces for twelve years and
underwent three major orthognathic operations. Our client was a clinic
orthodontist who was treating the patient as the first surgery collapsed into
crossbite. A central issue was the nature of the relapse. Was it surgical? Or
orthognathic? The case was won on that point. Surgical relapse is only
correctable by surgery. The oral surgeon that operated all three times was not
sued. He, however, was found 35% responsible for the many years of pain and
suffering experienced by the patient. This matter was tried in Norwalk. The
gross verdict amount was $345,000 against the co-defendants except for Mr.
Wianecki’s client who obtained a defense verdict. Thomas G. Wianecki (Senior Partner/Irvine Office) received another defense verdict on May 9, 2005 in a Dental Malpractice case where a 30 year old woman claimed 8 crowns were defective and that periodontal problems and TMJ had resulted from the poor fit of the crowns. Defense argued that all the crowns were and are within the standard of care and that the patient approved the size, shape, and color of crowns before permanent cementation. The jury came back after deliberating for just under 3 hours with a verdict for the defense.
In February 2005, before a Norwalk jury, Thomas G. Wianecki (Senior Partner/Irvine Office) defended an admitted liability action where an oral surgeon mistakenly gave an elderly patient penicillin. Allegations of resultant congestive heart failure and severe allergic reaction were made. These claims were defeated and a defense verdict was achieved.
Thomas G. Wianecki (Senior Partner/Irvine
Office)
Ronald Zurek (Senior Partner/Los Angeles). In a recent case, our client [then represented by a different lawyer] thought they had settled the case by accepting the other parties’ favorable settlement offers. Unfortunately, when a secretary mistakenly mixed up the acceptance documents between envelopes going to different lawyers, the critical acceptance document did not get delivered to the plaintiffs’ attorney in a timely manner. The case came to Wesierski & Zurek for trial when the plaintiff, refusing to concede that settlement had been reached, pursued trial with the intent to seek far more damages in an amount beyond insurance coverage available to the defendant. At the trial Ron raised a ‘settlement defense’, claiming that despite the technical failure to have properly accepted, the defendant had actually settled the case by virtue of delivering the acceptance to another lawyer who represented the plaintiff in another capacity. Ron also argued plaintiff attorney’s actual knowledge of intent to settle, and conduct confirming his knowledge of a mistake by the defense, should prevent or stop the plaintiff from claiming that no settlement was made. The court agreed with both contentions and upheld the settlement that prevented further trial proceedings where our client would have likely sustained a large adverse verdict.
Wesierski and Zurek LLP substituted into the case just a few weeks before trial. The case had been ongoing for over two years and numerous witness and expert depositions had been taken and multiple motions had been filed and argued. On the day of trial the firm brought a motion for judgment on the pleadings arguing the case was barred as to the defendant the firm had been retained to represent since under the terms of the lease the defendant was a third party beneficiary to the lease and the terms barred suit. The court granted the motion and on a subsequent motion granted a motion for all attorney fees and costs.
Thomas W. Ely (Senior Partner/Irvine Office) The defendants contended that the decedent had traveled 118 feet from the takeoff ramp to the point of landing, dropping more than 30 feet, and that the vehicle over rotated, landing nose first. As a result, an excessive and abnormal force was applied to the front end of the motorcycle causing the triple clamps and steering stem to fail. Theses parts were properly designed and manufactured, but this was an unforeseeable misuse of the motorcycle. Plaintiffs settlement demand was $6,800,000. The defendants, the designer, manufacturer, distributor and retail dealer, offered $50,000 per CCP 998. Nine experts were called to testify for the plaintiffs, seven for the defense. The trial lasted 7 weeks and the jury deliberated for 6 hours, before deciding that the motorcycle was not defective.
The case arose out of a house fire that began at the defendant's home two years earlier. Defendant arrived home from work at about 9:30 p.m., opened the garage door, and was surprised to find that a fire had started in the garage. He quickly went into the house to warn his wife and two daughters, who had no knowledge of the fire, and then tried to put the flames out with a garden hose. Despite his efforts, the fire spread rapidly. His wife attempted to call 911 in vain, the telephone did not work so the family evacuated the home. A neighbor called 911 and the Fire department arrived within 5 minutes. By then the fire had engulfed the front of the defendant's house and had spread to an adjoining house. A third house was damaged by smoke before the fire department was able to contain the fire. The fire investigator later determined that the fire was caused by potting soil that self heated to the extent that it ignited nearby combustibles. He ruled out all other causes of the fire. The plaintiffs were insurance companies that were seeking reimbursement for the amounts paid to the adjoining home owners, for amounts totaling over $440,000. Plaintiffs contended that spontaneous combustion of potting soil was impossible, and that the fire was caused by the negligence of the homeowner defendants. Plaintiffs also argued that the family was negligent by storing an excessive amount of combustibles in the garage that caused the fire to spread, and by failing to promptly call 911. Defense argued that plaintiff's failed to prove that defendant's were negligent and that the mere fact that the fire occurred was insufficient to raise an inference of negligence on the part of defendants.
The judge made their company the lead defendant and after numerous efforts the company was extricated from the lawsuit at a settlement cheaper than everyone else in the case paid. The other defendants settled out early while the company the firm represented eventually settled with an agreement they would never be sued again and they have not been by this attorney. The firm was lead counsel throughout the case with all witnesses for cross and direct and as to voir dire and opening etc. The Firm’s business practice department has experienced attorneys who assist clients in many different business transactional matters. Attorneys from the Firm’s business department recently worked with clients engaged in the retail sale of golf and recreational equipment to expand their business operations through the acquisition of additional business operations in the same field. The Firm’s lawyers assisted the clients in the review of the operational parameters of the businesses being purchased, and then worked closely with the clients in the preparation of the offer to purchase. Once the terms and conditions of the purchase were resolved through a series of negotiations, our lawyers drafted the business purchase agreements, including coordination with the clients’ separate tax advisors regarding individual impact and implications of the purchase. Wesierski & Zurek’s attorneys have also assisted clients involved in the acquisition of their manufacturing business by an international conglomerate centered in Canada. The matter covered negotiations over several months with other law firms located across the United States. The complex transaction culminated to the satisfaction of the Firm’s clients and included substantial individual pecuniary benefits for the clients, together with continuing employment opportunities with the acquired company. The Firm’s business department has also recently been engaged in the purchase and sale of local businesses involved in the surf wear and recreational sales industry. To assist our clients, Wesierski & Zurek’s lawyers have drafted applicable Letters of Intent (both binding and non-binding), engaged in due diligence reviews with our clients, and negotiated and drafted the resulting business purchase agreements. Attorneys from the Firm’s business department have also recently been called upon to review and re-negotiate master services agreements between the Firm’s clients and an international services company. The negotiations involved the difficult undertaking of having to negotiate from the standard form contract utilized by such international businesses against the backdrop of the particularized needs and interests of the local client’s business. Persistence can often result in favorable results instead of the "take it or leave it" appearance of many such standard agreements.
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