Civil Jury Verdicts – February 2015

Yes, I am back with another Civil Jury Verdicts column. No, I did not move out of town. There just have not been sufficient reports for me to prepare a Civil Jury Verdicts column. I now have some reports so here goes.

Brian C. (a minor) v. Contra Costa Health Services involved one of the bigger jury awards in Contra Costa recent history. The Honorable Steven Austin presided. Two Plaintiffs firms took the lead. Michael E. Gatto of Rains Lucia Stern, PC, was co-lead together with Eustace de Saint Phalle of the Veen Firm. Alison M. Karp of the Veen firm assisted the lead lawyers. W. David Walker of Craddick, Candland & Conti represented Defendants.

Factually, the case involved a medical malpractice claim involving alleged negligent management of a twin pregnancy, which resulted in the death of one twin and severe brain injury to the surviving twin. It was alleged Contra Costa County Health Services assigned a family practitioner to handle an extremely rare and high-risk pregnancy. The defendant doctor did not seek co-management with a specialist, nor did the doctor refer the mother out to a specialist. The doctor apparently failed to appreciate the risks associated with the pregnancy, failed to schedule a timely delivery and failed to properly respond to an obstetrical emergency.

After five years of litigation and a two-month trial, Plaintiffs’ counsel presented evidence that the doctor engaged in a pattern of tampering with the medical records and provided arguably false testimony.

The pre-trial demand was $11.75 million. The mother’s claim had settled prior to trial for the MICRA limits of $250,000. At the mandatory settlement conference and after three failed mediations, the carrier offered $2.25 million. There were additional demands and offers during the trial.

The jury determined the surviving twin would live another 74 years, would never be employable and would require extensive future medical care for the rest of his life. The jury returned a verdict of $12,132,780.82 present value.

In an Alameda County Superior Court case entitled Francisco et al v. AC Transit et al, Case No. RG12617444, the jury awarded a woman and her daughter $15,313,703 for injuries incurred while they were passengers in an AC Transit bus.

The Honorable Gail Brewster Bereola presided at trial. Plaintiffs were represented at trial by Brian Panish, Spencer Lucas and Patrick Gunning of the Panish law firm. Plaintiffs were also represented by Ivan Golde. Defendants were represented by Shawn Tolliver and Dana Fox of Lewis Brisbois.

Maria Francisco, her daughter Mia and other family members were riding in an AC Transit bus. The bus went over a speed bump in a school zone at twice the legal speed limit. As a result, Francisco was thrown from her seat and suffered a severe traumatic burst fracture to her L1 vertebra. The driver allegedly verbally berated Francisco after the accident. It was all caught on tape. As a result of the injury, Francisco has undergone three spine surgeries and has been in chronic pain and unable to work since the incident.

The jury awarded Francisco $10 million in past and future pain and suffering, $3.385 million in past and future medicals, $800,266 for future loss of earnings and $127,472 for past family services. Daughter Mia was awarded $1 million for past and future emotional distress relating to her witnessing the incident. The Defendants pre-trial settlement offer was $2.75 million.

Interestingly enough in 2011, the Panish firm obtained a $10.5 million settlement against AC Transit in another bus accident case.

Another Contra Costa Superior Court civil jury verdict involved a case entitled Kelly v. Contra Costa Water District, Case No. C10-01388. The Honorable Laurel Brady presided at trial. Attorney Don Odell of Pleasanton represented Plaintiffs. Craig Judson and Sharon Nagle represented Defendant.

The case involved water leaks at a property in Pittsburg. Plaintiffs alleged the water district was responsible as it had a nearby pipeline. The water district admitted a small leak but was not responsible for damages claimed by Plaintiffs.

Prior to trial, Plaintiffs demanded $3.2 million. Defendant offered $1 million by CCP 998. The jury returned a gross verdict of $414,000 which netted out to $331,200.

The Morrill Firm attorneys never fail to provide trial reports to me. Here are three bench trial reports:

  1. In the Matter of the Raul C. Uvalles, Sr., Revocable Living Trust, Contra Costa Superior Court Case No. P12-01004, Judge Suzanne Fenstermacher presided. Andy Verriere and Joe Morrill represented the trustee. Opposing counsel was Juliette Robertson.

The trial involved the claim by the surviving spouse seeking a determination that a premarital agreement was invalid and therefore the surviving spouse was entitled to at least 50 percent of the trust’s assets. The trustee filed a cross petition seeking that not only was the premarital agreement valid under California law, but the surviving spouse waived her right to inherit. The court determined the premarital agreement was valid and the surviving spouse had waived her right to inherit from the decedent.

In the Matter of the Emmett and Aralee Charlton Trust, Contra Costa Superior Court Case No. P13-01298, Judge John Sugiyama presided. Andy Verriere represented the trustee. Jonathan Le Duex and Lawrence Crocetti represented themselves. The trial involved an objection to accounting petition covering an 11-year period by trustee and petition to remove trustee. Following the trial, the court overruled the objection to the accounting petition, approved the petition and denied the petition to remove the trustee.

In the Matter of the Estate of James S. Brotherton, Contra Costa Superior Court case No. P13-00811, Judge John Sugiyama presided. Andy Verriere represented the personal representative. Diana Brotherton represented herself. The trial involved the objection to accounting petition. Following the trial, the court overruled the objection, and ordered Diana Brotherton to pay the estate $23,765.65 in attorney’s fees and costs.

It does seem quite a while since I penned a Bar Soap column for the Contra Costa Lawyer. Perhaps so, but here goes the latest … and actually, I did not “pen” this article. My kids give me a hard enough time with my electronic skills or lack thereof, so I want to make it clear: I use a computer.

I am a bit annoyed with a recent interview concerning a Coroner’s Inquest. In fact so annoyed, I penned a separate article (okay, I didn’t actually pen), on just the topic of Coroner’s Inquests.

As a longtime Coroner’s Inquest Hearing Officer, I do not normally give interviews concerning specific Inquests, and in fact when you read about a Coroner’s Inquest in the Contra Costa Times, the hearing officer’s name is never mentioned. And that is as it should be. So look for my separate article coming soon, and you will learn all about Coroner’s Inquests in Contra Costa County.

I recently went to trial in Contra Costa County. That is unusual for several reasons. The first of which is that although I am a Contra Costa lawyer, most of my cases are tried in other venues. Another reason is that not many civil cases actually get to verdict. You will have to read about the results in my latest “Civil Jury Verdicts” column.

The salient point being: Most often when a case goes to trial, one side or the other miscalculated. Very few cases in my view offer such novel issues that a jury must decide. Perhaps that is the reason so few civil cases go to verdict as compared to days gone by. The reasons are many, but suffice it to say, most lawyers have gotten that message.

The year 2015 greets us with a number of changes in our Contra Costa Superior Court Civil Bench. That is not to say that our judges who do criminal matters, probate matters, family law matters, juvenile matters, et al., are not civil. I am talking about the departments we at one time called “Fast Track” departments. Anyone wanting to use that term should sit in for a few trial setting conferences. Trials are regularly being set in the fall of 2016. Yes, 2016, not 2015.

But, I digress. Judge Jill Fannin is taking over the civil calendar from Judge Laurel Brady. So, we will once again have a Fannin in a civil trial department in Contra Costa. I only hope her taste in neck ties is different than her father’s. Rick Flier can weigh in on this issue if he likes.

Judge Barry Goode is headed back to the complex litigation department and Judge Judy Craddick is moving over the hallway to take over Judge Austin’s department, while Judge George Spanos remains in place in department 34 on the third floor.

Speaking of civil matters, I do have to chuckle once again at the whole Court Call “experiment.” So, why do some lawyers talk way too much, and a number not enough, when on Court Call? Often is heard the words by the court: “Hello, are you still there?”

The mind boggles at what may be going on behind the scenes. More often the responses are long, tedious and without a muzzle. I suppose if lawyers are in their kitchens, in their pajamas, with the news blasting in the background, they think they can talk on Court Call as if they are in their kitchens, in their pajamas, with the news blasting in the background. A little hint to all: State your appearance, say only what is needed to let the court know you have that new CMC date, then shut up.

Sadly, it seems I never fail to have to mention the passing of members of our local legal community. Some have thanked me for being the local legal obituary column. I don’t really mean to be that, but I do feel the need to mention the passings. I read about the death of Seymour Rose. Seymour was a real character for many years in our community. A UC Berkeley grad and a Boalt Hall grad, Seymour was admitted to the State Bar in 1955. How many of you can say you were even alive in the ‘50s?

Dean West Wright was also a UC Berkeley grad and a Boalt Hall grad. While he spent much of his legal career in an Oakland office, we certainly saw him in our local courts. Dean spent 55 years in the practice of law, and finally retired in 2004. That is a long time.

Although not lawyers, we lost several members of our local police department over the past few months. Fortunately, not in the actual line of duty. I worked very closely with Dan Lynch and Carlos Rose when I was a deputy district attorney. Dan was a Martinez police officer and most recently an inspector with the Contra Costa District Attorney’s Office. Carlos was longtime Concord police officer. Both left us too soon.

Now onto more pleasant news of “People on the Move.” Sitting in one of our civil courtrooms recently I saw Jay Chafetz seated nearby, but not suited up in his usual attorney appearance attire. Turns out, Jay is now a research attorney with our Superior Court. In chatting I learned he was one of eight such research attorneys. Congratulations, Jay. Looks like no more client meetings and certainly no more monthly pre-bills. Oh the thought of it! I wonder if they have any openings?

Ralph Zappala is now at Busby & Zappala in Lafayette. Shortens up that commute, I bet. Ralph was a longtimer at Lewis Brisbois in the city. Congratulations, Ralph, on your new firm.

Read in the SF Business Times, my former colleague at Ropers Majeski, Jim Lassart, is now a shareholder at Murphy Pearson. He came over to Murphy Pearson a while back as Senior Trial Counsel. Saw that Dennis Strazulo and Maurice Fitzgerald have also made moves. Dennis and Maurice were also at Ropers when I was in the city. Maurice is now at the Cartright firm in San Francisco. And Dennis is the California managing partner of a big Atlanta firm. Sounds very nice for both of them. I should mention that the Bus Times also mentioned the addition of three new lawyers at Ropers Majeski.

Remember last time I asked for local lawyers to let me know if they had achieved “Super Lawyers” status? I heard from Ross Pytlik who was designated a “Rising Star” by Super Lawyers. Congratulations, Ross. The only other person I heard from was me.

After the death of our good friend Mark Ericsson, I wondered what would happen at his firm. Well, wonder no more. Not letting any moss grow under his feet, Walt Youngman has hired Jean Claude Mallein Jr., and Tara Shine, as attorneys at the firm.

I saw a recent announcement that Mike Brown and Audrey Gee had celebrated two years at their firm Brown Church & Gee. Two years? It seems they just started that firm last week. Congratulations to them on the two-year anniversary.

Time to go. I am sure there is more to talk about. Keep those cards and letters coming or email me at

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