Sacramento Car Accident Lawyer Blog

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

DEFENDANTS’ MOTION FOR NEW TRIAL
MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION
The trial court is the sole line of defense against excessive jury verdicts. This Court is thus empowered to re-weigh the evidence, and to determine independently whether the evidence justifies the amount awarded by the jury. That power should be exercised here, if ever there were a time to do so.

Here, the jury awarded the astonishing amount of $10.2 million against Zenkov for injuries suffered by Mr. Ward, and the loss of consortium suffered by Ms. Ward. Yet there was no catastrophic injury here of the type justifying $10.2 million. This amount is not an amount which a reasonable person would estimate as fair compensation for plaintiff's serious--but not catastrophic-- injuries. These awards are utterly unreasonable, and this Court must act. For if it does not, then Zenkov will have no practical other legal avenue by which to seek a reduction of the monstrous amount which has been awarded against him.

Mr. Ward did, of course, present evidence at trial that he has suffered serious--but not catastrophic--injuries due to the auto collision. The evidence is of injuries to his neck, back, and knee, which cause him to suffer chronic pain for which he must take powerful drugs, and which will require surgery in the future. These injuries, while substantial, simply do not justify an award of $10.2 million. This is so because, while the evidence may have shown that Mr. Ward's injuries have affected his quality of life, the same evidence also showed conclusively that his injuries have come nowhere close to destroying his life.

Continue reading "Sacramento Man Seriously Injured In Auto Accident, Part 1 of 14" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Contrary to Defendant's argument that it is necessary for a meeting between co-conspirators for form a conspiracy, The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and circumstantial evidence. It is not necessary to show a meeting of the alleged conspirators or the making of an express or formal agreement. (BAJI California Jury Instructions, Civil 9th Ed., 2002, P. 205) (Emphasis added) Kidron v. Movie Acquisition Corp. 40 Cal.App.4th 1571, 1583 (1995)

It is clear from the events that occurred the night of December 19 and early morning of December 20, 2006, that Stacy Greene and El Mexicano knowingly conspired to violate Business & Professions Code Sec. 25602.1, planning their wrongful acts, assisting each other, knowing their acts were wrongful and unlawful. El Mexicano andStacy knowingly conspired to violate Business & Professions Code Sec. 25602.1. Plaintiff's TAC has alleged numerous facts to establish thatStacy knowingly co-conspired with El Mexicano Restaurant to "sell, furnish, give or cause to be sold, furnished or given away any alcoholic beverage" to an "obviously intoxicated minor," Matt Smith, in violation of Business & Professions Code Sec. 25602.1. There must be a showing of knowledge of the planned tort and intent to aid in its commission. Wyatt v. Union Mortgage Co. 24 C.3d 773,784 (1979)

Stacy brought the minors to El Mexicano so that they could be entertained on the night and early morning of December 19, 20, 2006.

Continue reading "Drunk Driving Car Accident Kills Sacramento Teens, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

DEFENDANT STACY GREENE CONSPIRED WITH EL MEXICANO RESTAURANT TO VIOLATE BUSINESS AND PROFESSIONS CODE SEC. 25602.1

Plaintiff's Third Cause of Action alleges that Defendant Stacy Greene conspired with El Mexicano Restaurant and Bar to violate Business & Professions Code Sec. 25602.1. Conspiracy is a legal doctrine that imposes liability on persons who, although not committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a co-conspirator effectively adopts as his or her own the torts of other co-conspirators within the ambit of the conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. 7 C.4th 503,510,511 (1994))

The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design... (Applied Equipment Corp. v. Litton Saudi Arabia Ltd supra. 7 C.4th at 511) DefendantStacy need not share the same duty as a licensed purveyor to sell alcohol to engage in a conspiracy to violate Business & Professions Code Sec. 25602.1 as defendant's have erroneously argued. Defendant's reliance on Doctors' Co. v. Superior Court 49 Cal.3d 39, 47 (1989) is misplaced. There has never been an allegation that Stacy was acting as an agent for El Mexicano. Doctors' Co. held that an alleged conspirator to an agreement was not personally bound by the duty if he was acting only as the agent or employee of the party who did have that duty. (Doctors' Co. v. Superior Court supra. 49 Cal.3d at 47) El Mexicano, a corporation, is liable because the acts of selling or furnishing alcoholic beverages to an obviously intoxicated minor were ratified and approved by a corporate officer. (See Part 8 of 8.)

Continue reading "Sacramento Birthday Celebration Ends In Deadly DUI Car Accident, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Since the Greenes had assumed an affirmative duty to protect, control and supervise him on the night and early morning of December 19, 20, 2006. [t]he finding of a duty to provide assistance depends upon a showing of special factors such as would give rise to an expectation that assistance would be provided and a showing that due to these factors the victim detrimentally relied upon that expectation or was otherwise dependent upon the defendant for assistance. (cf.Andrews v. Wells supra, 204 Cal.App.3d at 540) However, the Greenes breached their duty by allowing Paul to ride home with a drunk driver.

In Tarasoff v. Regents of University of California 17 C.3d 425,435 (1976) our California Supreme Court held that "as a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct," the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. (Citations omitted) If the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions... (Brockett v. Kitchen Boyd Motor Co. 264 C.A.2d 69,72 (1968) (citing Valdez v. Taylor Automobile Co. 129 Cal.App.2d, 810,817 (1954).)

The case of Brockett v. Kitchen Boyd Motor Co. was an action for personal injuries by occupants of an automobile against the employer of a minor who became intoxicated at a Christmas party, drove his vehicle, which collided with the plaintiff's causing them injuries. The lower court sustained defendant's demurrer without leave to amend and was reversed by our Court of Appeal. The Court held that It is our view that the alleged relationship between the minor Huff and Kitchen Boyd Motor Company was such that the defendant had assumed the responsibility for the well-being and proper conduct of the minor in the circumstances here for not only the minor's protection, but also for the protection of the general public through the exercise of ordinary care. (Brockett v. Kitchen Boyd Motor Co. supra. 264 C.A.2d, at 72.)

Continue reading "Three Sacramento Families Suffer After Deadly Car Accident, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

DeBolt v. Kragen Auto Supply, Inc. 182 Cal.App.3d 269 (1986) involved a host (Kragen Auto Supply) of a beach party who supplied and served a minor alcoholic beverages to the point where the minor became intoxicated and disorderly. Kragen ordered the minor to leave the party, but took no affirmative action to provide any alternative or safer means of transportation for her, so the minor drove her own car, ultimately plowing into a motorcycle killing two people. The Court of Appeal determined that Kragen was a social host and was immune from liability under Civ. Code Sec. 1714, B & P Code Secs.25602 and 25602.1. Kragen had no "special relationship" with any of the minors as did the Greenes in the present case.

Cory v. Shierloh, 29 Cal.3d 430 (1981), again a social host, furnished Plaintiff with alcoholic beverages, but the Court held that plaintiff's injuries were the result of her own intoxication. This case is clearly distinguishable as Plaintiff's injuries were not a result of his own intoxication but as a result of the Greenes breaching their duty of due care based upon their "special relationship" and allowing him to ride home with a drunk driver.

Chalup v. Aspen Mine Co. 175 Cal.App.3d 973 (1985), where an 18 year old became intoxicated in a restaurant and when she left she ran across the street against a traffic signal into the path of a car. The Defendant in this case was a licensed purveyor of alcohol, but the Court held that the injured minor who buys liquor while she is obviously intoxicated may state a cause of action under B & P Code Sec.25602.1. Again, this case is clearly distinguishable from the present case as the Greenes failed to protect Paul from riding home with a drunk driver, as was their duty of due care based upon their "special relationship" with him. It did not involve the sale of alcohol to Plaintiff.

Continue reading "Sacramento Minors Involved In Deadly DUI Car Crash, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

The only case the Greenes have cited in opposition to Plaintiff's Second Cause of Action- special relationship is Elizarraras v. L.A. Private Security Services, Inc. (108 Cal.App.4th 237 (2003)) (L.A. Private Security Services, Inc. was hired by a restaurant as security guards and their job responsibility did not include preventing patrons from drinking and driving, thus they had no special duty of care to prevent minors from consuming alcoholic beverages as its job responsibility is not equivalent to a legal duty of care to underage patrons to prevent them from drinking or driving while intoxicated ).

Defendants’ demurrer contains pages of boilerplate information about the legislative history, definitions and interpretation of the 1978 amendments to Civ. Code Sec. 1714 and B & P Code Secs.25602 and 25602.1. Although this historical information may be interesting, it does not relate to the particular facts alleged in Plaintiff's TAC, the First and Second Causes of Action and the special relationship that existed between the Greenes and Paul.

Defendants' reliance on these cases is misguided and can be distinguished both factually and legally. Defendant El Mexicano does not dispute liability for serving alcohol to an obviously intoxicated minor, specifically Danny Smith, age 18, the evening of December 19 and early morning of December 20, 2006 in violation of B & P Sec.25602.1.

Continue reading "Sacramento Family Loses Children In Fatal DUI Car Accident, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

THERE EXISTED A SPECIAL RELATIONSHIP BETWEEN THE GREENES AND PLAINTIFF AND PLAINTIFF’S FIRST AND SECOND CAUSES OF ACTION FOR NEGLIGENCE AND NEGLIGENT SUPERVISION-SPECIAL RELATIONSHIP ARE DISTINGUISHED FROM THE CASE AND STATUTORY LANGUAGE OF BUSINESS & PROFESSIONS CODE 25602.1 THAT DEFENDANTS HAVE CITED

Actionable negligence involves a breach of a legal duty of care that proximately causes injury. Because there existed a special relationship between the Greenes and Plaintiff Paul Verano, age 14 at the time of this tragic car accident-- their promise to "be there" for him and his reliance on the expectation that they would protect, control and supervise him on the night and early morning of December 19, 20, 2006, they are liable for Plaintiff's injuries based upon the affirmative duties arising from this "special relationship." (cf.Andrews v. Wells supra, 204 Cal.App.3d at 541.)

Defendants contend that that Plaintiff's First and Second Causes of Action for Negligence and Negligent Supervision are barred by Business and Professions Code Secs. 25602, 25602.1, because the Greenes are not "licensed purveyors of alcohol" and were only patrons in El Mexicano Restaurant when some alcohol was consumed by Smith at some point after he was obviously intoxicated before the accident occurred. Defendants claim that they had no legal duty of care and are immune from liability pursuant to Civ. Code Sec. 1714, B & P Code Sec. 25602.1 for Plaintiff's injuries that occurred because they allowed Plaintiff to get into a vehicle driven by Smith, a drunk driver, who crashed his vehicle into a tree, killing himself, two passengers and severely injuring Plaintiff.

Continue reading "Sacramento Restaurant Served Minors Before Fatal Car Accident, Part 3 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

PROCEDURAL HISTORY
Plaintiff filed a lawsuit on May 1, 2007, against the Estate of Danny Smith and Richard Smith, Case No. SC2007-09, which resulted in a settlement and this Court approved Plaintiff's Petition to Compromise a Disputed Claim on February 29, 2008. During the course of litigation in that case facts became evident that Danny Smith, a minor, was "obviously intoxicated" at El Mexicano Restaurant and served alcoholic beverages - beer and Tequila shots, throughout the evening before and the early morning of the fatal car crash. There are three other related cases that were ordered consolidated by this Court February 23, 2009.

El Mexicano was fictitiously named as Doe 1 February 13, 2008. Plaintiff filed and served a FAC on Defendant El Mexicano, which it answered on June 17, 2008. El Mexicano does not dispute that it violated Business & Professions Code Sec. 25602.1 and has already reached settlements with some of the Plaintiff's. Plaintiff Verano's FAC was served on Robert Greene, Doe 2 and Stacy Greene, Doe 3. Defendants demurred to Plaintiff's FAC, and the hearing on demurrer was held April 3,2009. Plaintiff was allowed to amend his complaint and served his TAC on Defendants. A trial date has been set for November 30, 2009.

PLAINTIFF SHOULD BE ALLOWED TO FILE HIS THIRD AMENDED COMPLAINT. THIS IS BECAUSE PLAINTIFF'S POSITION IS STRONGLY SUPPORTED BY PUBLIC POLICY INTERPRETED TO ALLOW TIMELY AMENDMENTS TO PLEADINGS (C.C.P. SEC. 473) AND THE TAC SATISFIES THE REQUIREMENTS OF THE RELATION BACK DOCTRINE

First, there is strong public policy that allows a party to amend any pleading so that they may litigate cases on their merits. (Code of Civil Procedure Sec. 473.)

Continue reading "DUI Car Accident Injures Sacramento Teen, Part 2 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Plaintiff's Opposition to Defendants Robert and Stacy Greene's Demurrer to Plaintiff's Third Amended Complaint

MEMORANDUM OF POINTS AND AUTHORITIES

CASE SYNOPSIS
This lawsuit arises from an automobile accident that occurred on the morning of December 20,2006, at approximately 1:00 a.m. near the intersection of Fair Oaks Blvd. and Howe Avenue, in Sacramento. Defendant Danny Smith, age 18, was driving a 2002 Toyota Camry, owned by his father, Defendant Richard Smith. His passengers were Mike Greene, age 19, Tom Lawrence, age 18, Kevin Greene, age 15, and Plaintiff Paul Verano, age 14. The youths had been celebrating Kevin Greene's 15th birthday at El Mexicano restaurant in Sacramento the evening of the 19th and early morning of the 20th.

Defendant Danny Smith left the restaurant in an intoxicated state, was proceeding eastbound on Fair Oaks in the no. lane in his Camry, speeded up to pass Stacy Greene, Kevin Greene's sister, who was driving in front of him. As Defendant Danny Smith moved into the no. 2 lane to pass Stacy, he apparently tried to slow to avoid hitting another car that was already in the no. 2 lane in front of him, lost control of his vehicle, jumped the curb and struck a tree on Fair Oaks. The impact was so severe that the Camry burst into flames, trapping the youths inside the vehicle. Defendant Smith, Mike Greene and Tom Lawrence were killed. Plaintiff Verano and Kevin Greene, who were seatbelted and sitting in the rear seat, survived the crash. Plaintiff Verano suffered serious injuries. (See Part 2 of 8.)

Continue reading "Sacramento Teens Killed In Car Accident, Part 1 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

The Frontage Road is not a bicycle lane and should not be referred to as such. A bicycle lane is a term of art, defined by statute. CVC Section 21207 permits local authorities to establish bicycle lanes upon streets, as defined in Section 24 of the Streets and Highways Code pursuant to Article 5 (commencing with Section 1720) of Chapter 9 of Division 2 of the Streets and Highways Code. Bicycle lanes thus established must comply with Section 891 of the Streets and Highways Code, which sets forth the definition of a bicycle lane. Under Streets and Highways Code Section 890.4, there are three categories, called bicycle paths, lanes and routes, as follows:

(a) Class I bikeways, such as a bicycle path, provide a completely separated right of way designated for the exclusive use of bicycles and pedestrians with cross-flows by motorists minimized;

(b) Class II bikeways, such as a bicycle lane, provide a restricted right of way designated for the exclusive or semi-exclusive use of bicycles with through travel by motor vehicles or pedestrians prohibited, but with vehicle parking and cross-flows by pedestrians and motorists permitted.; and

(c) Class III bikeways, such as a bike route, provide a right of way designated by signs or permanent markings and shared with pedestrians or motorists.

Continue reading "Bicycle Path Source Of Dispute In Sacramento Bicycle-Auto Collision, Part 7 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

11. Defendant's Theory of the Case

Plaintiff is 100% negligent and is the sole cause of the auto collision and his resultant injuries. There is no evidence that defendant violated any law or ordinance or did something that a reasonably careful person would not do in the same situation, or that defendant failed to do something that a reasonably careful person would do in the same situation. At all times, defendant used reasonable care to prevent injury to himself and to others.

The accident occurred in one of two ways:
(a) Plaintiff came riding down the sidewalk in violation of Sacramento Traffic Ordinance Section 96 (bicycle on a sidewalk), failed to keep a careful lookout for cars turning right from the Boulevard onto Ridge and failed to yield the right of way to defendant, who was lawfully traveling east on Ridge; or

(b) Plaintiff came riding down the Frontage Road, ran through the stop sign at Ridge, failed to keep a careful lookout for cars turning right from the Boulevard onto Ridge and failed to yield the right of way to defendant, who was lawfully traveling east on Ridge.

Continue reading "Sacramento-Area Automobile Driver Claims Bicyclist Riding Illegally, Part 6 of 7" »