Pollak Law Blog

Wrongful Death: Oakland “Ghost Ship” Warehouse Fire

The Oakland “Ghost Ship” Warehouse Fire that took the lives of so many local members of our community is a devastating tragedy.  The fact that the incident appears to be a result of negligence and recklessness makes dealing with the emotions that much more infuriating.  Initial reports have indicated that the owner of the building was well aware of numerous dangerous conditions and illegalities of the property itself.  As concerning are the reports that the City of Oakland and County of Alameda were also well aware of the potential harm that the warehouse exposed the public to and their failure to enforce code and legal violations.  As recent as November 14, 2016 a complaint was issued regarding the collection of debris and hazardous material on and around the property.

While financial awards through litigation can never fully compensate for the loss of a life, our judicial system is equipped to provide for the loss by monetary compensation.  And because the owner of the warehouse and his insurance policy is likely limited, which would leave many without sufficent compensation, those effected should look to the City of Oakland and County of Alameda for compensation because of their respective negligence and recklessness that was a proximate cause of the tragedy.

The gross negligence of the owner, City of Oakland, and County of Alameda has devastated our community through the loss of scores of young and talented people.  Those liable for the loss must be held accountable.

Contract Law: The creator of Jungle Book’s famed song “Bare Necessities” almost lost his royalties by forgetting the bare necessities.

Case Update: The heirs of Terry Gilkyson, the songwriter of Jungle Book’s famed song “Bare Necessities”, sued Disney for Disney’s alleged failure to pay royalties in connection to the use of the song.  Generally, the statute of limitations for a written contract in California is 4 years.  Disney argued that the plaintiffs’ claim is stale as the contract was entered into around the same time of the original release of the song in 1967 and that Disney had not breached the contract in the last four years.  However, the plaintiffs raised the continuous accrual doctrine to attempt to revive their claim.

The plaintiffs argued that Disney’s obligation to pay royalties was a recurring obligation that triggered a new limitations period each time the song was used and royalties were not paid.  The court agreed and applied the continuous accrual doctrine to hold that the plaintiffs’ lawsuit was timely.  But the court limited it.  The plaintiffs were only permitted to seek recovery for royalties that should have been paid for a period beginning four years before the filing of the lawsuit.  While the plaintiffs were able to seek recovery for the last four years of damages, they certainly lost out on a large portion of their claim.

Gilkyson v. Disney Enterprises, Inc.

Reminder to Contracting Parties:  Statute of limitations are extremely important to remember and comply with.  The failure of an injured party to file their lawsuit within the applicable statute of limitations can and likely will prohibit their case from being tried in court.  Although there are certain exceptions, statute of limitations for written contracts are 4 years and for oral contracts 2 years.  It is best practice to avoid relying on the exceptions and ensure your lawsuit is filed within the prescribed time frame; it is a bare necessity.

Personal Injury: Once a party loses their credibility to the jury, that party likely loses their case.

Case Review:

The case Christ v. Schwartz, out of the Fourth Appellate District, had a plaintiff who was involved in a car crash with the defendant admitting negligence and liability but who was awarded no damages by the jury.  The jury found the plaintiff to not be credible because she had exaggerated her injuries.  The accident occurred when the defendant side swiped the plaintiff, both driving approximately 1o miles per hour.  The plaintiff immediately got out of her car and began running around searching for witnesses.  The plaintiff then turned down a ride home, drove herself away, and proceeded to engage in two months of physical therapy but did not seek additional medical treatment until she filed a lawsuit a year later.  In trial, the plaintiff testified that she was in constant pain and could not lift anything over five pounds or brush her teeth unless she first did yoga.  To rebut her claims, the defendant introduced a video showing the plaintiff lifting up her dog, holding a large handbag, and carrying a large garbage can, all without apparent pain.

The jury made the finding that the plaintiff was uninjured in the accident because there was no objective evidence of a medical injury.  The evidence the plaintiff introduced was self supporting and subjective and found to be not credible.  Despite the defendant admitting to liability, the plaintiff walked away with nothing.

Reminder to Litigants:

Other than the facts and the law being on your side, a party’s credibility is the most important aspect of a successful lawsuit.  Credibility can destroy in an instant and almost impossible to regain.  Telling the truth and not exaggerating is imperative.  The law, the judge, and the jury do not award those who have been caught in a lie.  Those injured as a result of another’s negligence should be awarded damages.  But damages in a personal injury case are generally meant to compensate for the injuries, not punish the negligent party, unless of course there is a basis for punitive damages.  Punitive damages, those meant to set an example to deter future behavior and to punish the defendant, are awarded when the defendant has engaged in malicious, oppressive, or fraudulent conduct.   Personal injury damages generally include past and future medical costs, past and future lost wages or earning potential, and pain and suffering, all of which must be proven to a reasonable certainty.

Contract Law: College is the place to make mistakes and these college kids got saved from theirs. When the manner in which a contract is entered into is unconscionable, the court will not enforce the contract against the aggrieved party.

Case Review:

While this case is not the most extreme example of unconscionability being applied, Magno v. The College Network, Inc. is a recent case in which procedural unconscionability was used to successfully avoid a provision in a written and executed contract.

Three California college students were approached in their homes by an Indiana based company offering a distance learning education program.  The salesman explained that the students could get a discount by signing up right away but did not give them a chance to read the documents.  After signing the contracts, the students realized that they did not receive what they had been promised and sued in California for, among other things, misrepresentation and breach of contract.  The Indiana company sought to compel arbitration in Indiana pursuant to the Indiana Arbitration provision in the contract executed by the students.

The students argued that the provision should not be enforced because of procedural unconscionability.  The court agreed.  The court found the unequal bargaining powers, the rushed nature of the transaction, and the fact that the Indiana Arbitration provision was buried on the back of the preprinted carbon paper forms which were not separately initialed by the students as sufficent facts to establish procedural unconscionability.

Caution to anyone entering into a contract:

Procedural unconscionability, when the way in which a contract is entered into shocks the conscious, and substantive unconscionability, when what is contracted for shocks the conscious, may be used to avoid the ramifications of a contract.  However, these theories to make a contract unenforceable generally require facts and circumstances that are painfully obvious and shocking for the defense to work.  To avoid such a drawn out and costly lawsuit in the first place, people should pay attention to the act of contracting and the terms of the agreement.  At the absolute minimum, people must read what they are signing and thereby agreeing to.  Had the three college students read the contract before signing, maybe they would not have agreed to sign and would have avoided the lawsuit all together.

Landlord-Tenant: Tenants who intend to use their unit for short term rentals, like Airbnb, must pay close attention to their rental agreement and local laws or risk being evicted.

Case Summary:

A case out of Los Angeles, Chen v. Kraft (2016) 243 Cal.App.4thSupp.13, allowed a landlord to evict a tenant who was using their unit for short term rentals despite the tenant having express authority to do so from the predecessor landlord.  In Los Angeles, the Rent Stabilization Ordinance prohibits short term rentals in homes that are zoned R-1 (generally suburban type single family homes).  Therefore, the tenant’s use of the unit was in violation of the local Rent Stabilization Ordinance.  The tenant set forth several defenses, including the defense that the use was permitted by the predecessor landlord.  The Court held however, that the use by the tenant was illegal in that it violated the local ordinance, and that the local ordinance trumped the authority from the previous landlord.  The tenant, who had not ceased advertising the unit on Airbnb despite receiving notices to cure or quit from the landlord, was evicted for such failure to cure.

Reminder to Landords and Tenants:

Although this case comes out of the application of a Los Angeles Rent Stabilization Ordinance, it should serve as a reminder to both landlords and tenants here in the bay area and specifically San Francisco that several sources of authority control the landlord-tenant relationship, and short term rentals are becoming highly regulating in an admittedly ever changing legal environment.  The lease is often the first place to look in determining what is permitted in a rental property, but state and local laws cannot be ignored, especially when it comes to short term rentals.  Because the tenant was served with a notice to cure or quit, had the tenant stopped advertising on Airbnb after being served with notice, the tenant would have likely been able to remain.

Family Law: When party’s respective resources are not balanced, courts will do what they can to equal the playing field.

Case Summary

In the marriage dissolution custody and support case of In re Marriage of Smith (2015) E060373, Mother was financing her litigation with over $400,000 of her parents’ money while Father used credit cards to pay his attorney’s fees.  What was more concerning for the court, was that Mother’s attorneys, being heavily financed, crossed the line of zealous advocacy to tactics that were oppressive, unreasonable, and unduly burdensome to Father, making the respective parties ability to litigate detrimentally imbalanced.

The court awarded attorneys fees and sanctions to Father by applying Family Code §2032(b)‘s stated direction that “the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, the the extent relevant, the circumstances of the respective parties…”

Reminder to Family Law Litigants

Although not always a reality, the justice system is meant to level the playing field to the extent that the law and the facts should control.  When certain litigants can afford high priced attorneys and their opponents cannot, in the family law context, the court has the power to order those who can afford it to pay for their opponents litigation costs.

Landlord-Tenant: Landlord not liable to landscaper for injuries sustained after he stepped on a homemade bomb the tenant left in the yard.

A California Appellate Court decided, in the case Garcia v. Holt (2016) 242 Cal.App 4th 600, that a landlord is not liable to the landscaper for injuries sustained after he stepped on a homemade bomb the tenant left in the yard.  The Court noted that due to the landlord not having actual or constructive notice of the dangerous condition, the landlord never had the power, ability, or opportunity to remove the dangerous condition, and therefor not liable under a premises liability cause of action.

The outcome of this case may be obvious, but it is important for landlords to understand that knowing of a dangerous condition and not remedying it before an injury occurs can expose the landlord to liability.  Had the landlord in the Garcia v. Holt case been on actual or even constructive notice of the dangerous condition, the landlord would have likely been found liable under a premises liability cause of action.  More importantly to understand for tenants, however, is to not make bombs!

Personal Injury: He walked into a haunted house but got so scared he sued. True story.

A California appellate court affirmed a trial court’s judgment in which the operator of a Halloween haunted house was found not liable to a patron who was injured after experiencing “scary fear” rather than “fun fear”.  The case, Griffin v. Haunted Hotel, Inc. D066714, involved a situation in which a hotel’s haunted attraction lead patrons through a trail where actors would frighten them with sudden gestures, loud noises, bright lights, and a variety of props, including mock axes and chainsaws.  Towards the end of the trail was an opening that appeared to be the exit and end of the attraction.  However, patrons were guided onto an access road and lead to believe that the attraction was complete, but accosted by what appeared to be a crazed madman wielding a chainsaw.

Mr. Griffin, who enjoyed the attraction up to the point of the final moment, believed that he was facing a real life threat when accosted by the chainsaw wielding man.  Mr. Griffin ran, fell, sprained his wrist.  He then sued the hotel where the haunted house was operated for negligence and assault.  The trial court granted summary judgment for the hotel based on the primary assumption of risk doctrine.  In other words, Mr. Griffin got what he paid for.  He got scared.  In the court’s words, “Who would want to go to a haunted house that is not scary?”

Mr. Griffin appealed that ruling, arguing that the fear he experienced was not part of the “fun fear” but was “scary fear” because he was lead to believe he had concluded the attraction.  The appellate court affirmed, going on to hold that risk that a patron will be frightened, run, and fall is inherent in the fundamental nature of a haunted house.  Even if Mr. Griffin experienced subjective “scary fear”, his subjective mental state was irrelevant as a haunted house, and Mr. Griffin’s voluntary choice to encounter it, included the possibility of being lulled into a false sense of safety and then confronted with a scare tactic.

Family Law: A case about parental discipline. Does spanking your child on the rare occasion categorically constitute “serious physical harm” sufficient to invoke dependency jurisdiction?

A California appellate court, in the case In re D.M., B260549, was asked to determine whether a parent who would occasionally spank her children, ages seven and four, with her hand and sandal was necessarily causing serious physical harm to the level that required dependency jurisdiction, thereby making the children dependents of the court.  The dependency court held that dependency jurisdiction is invoked when a parent, on repeated occasions, hits their children with a shoe because doing so is intentionally inflicting serious physical harm.  However, as the appellate court pointed out, the dependency court failed to follow the proper analysis by failing to consider whether the spankings qualified as reasonable parental discipline.  The appellate court reversed and remanded the case back to the dependency court to reconsider.

While Welfare and Institutions Code Section 300 makes a child who has suffered serious physical harm at the hands of a parent subject to dependency jurisdiction, it also exempts “reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury.”

The dependency court did not properly consider and weigh the fact that the spanking occurred on the rare occasion when other techniques of discipline would not work, that the investigator found no marks, bruises, welts, or scars, and that the children reported that the spanking, when it did occur, “did not hurt too much.”

The analysis that must be followed to determine whether a parent’s use of discipline falls within the scope of the parental right to discipline their child turns on 1) whether the parent’s conduct is genuinely disciplinary; 2) whether the punishment is necessary and warranted under the circumstances; and 3) whether the amount of punishment is reasonable or excessive.