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Appeals

Paul Lipman (Senior Partner/Los Angeles Office) recently prevailed on appeal, protecting Ronald Zurek's defense verdict in Graven v. Goodell.  At trial, plaintiff bicyclist argued that defendant made a right turn without checking her mirrors, which the defendant admitted to cutting him off.  Mr. Zurek argued that there is no duty to check one's mirrors when turning right if there is no indication that there is any hazard present (the driver testified she did not pass a bicyclist; the bicyclist testified that she did). At issue on appeal was the defendant's right to the "right to assume the good conduct of others" instruction.  Plaintiff argued that this can only be used if the defendant herself used due care, and that she had not checked her mirrors.  On appeal, defendant argued, as Mr. Zurek had done at trial, that it is not necessarily negligence to make a right turn without checking one's mirrors, if here is no indication of a nearby hazard. 

In affirming the defense verdict, the Court of Appeal quoted Mr. Zurek's colorful closing argument at length.  As Mr. Zurek told the jury, "I dare say that of the thousands of right turns that are being made during the time I'm making this closing argument, that if we had a video camera on every driver in Southern California, you probably wouldn't see one who turns around and looks over at the curb and behind them.  Why would you?  There is no reason to, okay?  Unless his bicycle was right here – unless she drove right by him, and she knew he was right here – well, yeah, then that's obviously a different situation.  But he wasn't.  He was back here and he was coming real fast, and he was going downhill …"  The jury agreed, and the Court of Appeal agreed that this was the jury's decision to make.

The Court of Appeal also agreed with Mr. Lipman's appellate argument that a survey of case law indicates that the "right to assume the good conduct of others" instruction is appropriate anytime there is a conflict in the evidence as to whether the defendant used due care (the instruction is not appropriate if it is clear that the defendant did not use due care).

The Court of Appeal also agreed with defendant's contention that the jury instruction is applicable to defendants as well as plaintiffs.

                                                                                                                  - Paul J. Lipman

 Paul J. Lipman heads Wesierski & Zurek's appellate department.  Wesierski & Zurek LLP handles virtually all of its appeals in-house.  Mr. Lipman has been involved in excess of 25 appeals, and has argued 10 before the Court of Appeal.

Paul Lipman (Senior Partner/Los Angeles Office) prevailed on appeal in E & L Tax Services v. The City of South El Monte, upholding the constitutionality of that city's sign ordinance, against a concerted attack that tried to strike down parts of the law as vague and unequally enforced.

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.