Wise v. Otay Water District (San Diego, California)

For 15 months, Amy Wise and Angela Mason used treated sewage water as their drinking water at their candy store in Chula Vista — not by choice, but because two water lines in Otay Water District had been crossed by mistake. They sued Otay Water District, as well as the contractors and sub-contractors used to construct the water system, requesting over $1 million in damages, including harm from the illnesses caused by the treated sewage water and the subsequent emotional distress.

Procopio’s Anthony Dain, representing the plaintiffs, argued that the owners of the Candy Boutique had suffered severe distress as a result of suffering from cramps, nausea, vomiting, and diarrhea multiple times over the 15 months. Further, he argued that the publicizing of the case led to the plaintiffs suffering from emotional distress as a result of the community considering them ‘contaminated.’   

“For the 15 months…the plaintiffs had to be exposed to the pathogens in that water…and for the months and months and months of anger, frustration, humiliation, and mortification that they had to suffer for something that htey were not at fault for, we’re going to ask for money damages. That’s all we can do,” Dain said.

Jeffery A. Morris, representing Otay Water District, argued that the link between the illnesses and the water was questionable, though he acknowledged that the water was not intended for ingestion. “The act of microwaving would kill any bacteria [in the treated sewage water],” Morris said. “The using of soap…the act of drying their hands will kill most of the bacteria.” 

Further, he noted that one of his witnesses, a doctor, “could not see any of the complaints related to the water as opposed to some other cause.” 

The jury awarded the plaintiffs $1,145,000 in damages, finding Otay Water District responsible for 45 percent of the damages, Eastlake Company for 45 percent, and Bremco for 10 percent.

CVN webcast Wise v. Otay Water District live.

Smith v. Walmart involves a claim that Walmart and its courtesy patrol service, Wackenhut, failed to provide adequate security for the parking lot in which a Walmart customer, Michael Born, was murdered during a robbery.

Plaintiff attorney Mont Tanner told a Las Vegas jury that in the three years prior to the assault, the store had 2,683 service calls to the police department, including 17 calls for burglaries into vehicles, 56 for stolen vehicles, 15 for assault and battery, 15 for robbery, and five for possession of a deadly weapon. The store itself had 31 burglaries and 50 grand larcenies. “In summary…the police were called to this location on a vehicle that was either stolen or burglarized every other week. The police were called at a rate of just over one crime against person every four weeks. The police were called for just over one crime of felony theft every other week. The police were called on average over three times a day in the one year prior to the robbery and assault of Michael Born.”

Mr. Born had visited Walmart at 10pm to purchase a headlamp for his vehicle. He was installing the new headlamp in the Walmart parking lot when the assault occurred. According to Mr. Tanner, signs in the parking lot correctly indicated that surveillance or security cameras were in use, but the cameras were merely “scarecrow security” and were never monitored.

Mr. Tanner also said that the perpetrator, Raymond Garrett, had spent twelve minutes on the property stalking customers, with no apparent interest in shopping, but Walmart’s patrol service, Wackenhut, failed to warn Mr. Born not to do a repair in the parking lot, failed to respond to Mr. Garrett’s presence, was not trained to assess crime risks, and did not have a telephone.

For Walmart, Rob Phillips, of Phillips, Spallas, & Angstadt, said that Mr. Garrett was a sociopath, whose random attack was neither predictable nor preventable. Moreover, Mr. Garrett’s behavior was not suspicious or noteworthy, and Walmart could not have responded to it. Finally, the Walmart in question was not a “crime bed.”

Instead, twelve to fifteen thousand people per day visited the Walmart, which was considered a “safe haven” in a rather tough area. According to Mr. Phillips, Mr. Garrett had committed many assaults, but the reason he was behind bars now was because one of those assaults was at a Walmart, which had security cameras. But, “a reasonably prudent person put in the same position that Walmart was in could not have done anything that would have prevented this random and callous and heartless and chaotic, nonsensical, opportunistic, snap-in-time event.“

For Wackenhut, Craig Delk, of Thorndal, Amstrong, Delk, Balkenbush, & Eisinger, told the jury that Wackenhut’s job was to provide visible presence, which has a significant security effect. But the kind of criminal activity that occurred in this case was unavoidable could not have been deterred.

Wackenhut’s on-site traditional security officer (TSO) received proper TSO training, not police training. Wackenhut’s officer was not to be armed and was not to intervene. His job was to observe and report. The officer did have a radio to Wackenhut dispatch, but the officer’s total time of interaction with Mr. Garrett was maybe 8 seconds, so he had no basis upon which to report anything. “There is simply no causal connection whatever,” said Mr. Delk, “between my client’s activities on this parking lot on that night, and what happened shortly after 10:30 [to Mr. Born]… “Raymond Garrett is the guilty party here…not Walmart or Wackenhut.” 

CVN webcast Smith v. Walmart live.

The jury in Florida Gas Transmission v. Florida Department of Transportation today awarded over $82M in damages against the Florida DOT for breaching an agreement to reimburse for the costs of relocating a gas pipeline.

The jury rejected most of the claims asserted by both parties, including trespass, breach of easements, and promissory estoppel. However, on Florida Gas’s reimbursement claim, the jury awarded the precise amount requested by the plaintiff: $82,697,567.

In his closing rebuttal, Daniel Bishop, of Bishop London & Dodds, reminded the jury that a DOT witness had testified by video deposition: “I guess we would have to provide a place for [Florida Gas] to relocate…because they have a compensable interest in our right of way.“

“That was their own person’s testimony,” said Mr. Bishop. “Not ours, not taken from any of the documents.”

Florida Gas Transmission Co. is a subsidiary of Citris Corp, which is 50% owned by Southern Union Company (NYSE:SUG) and 50% owned by El Paso Corporation (NYSE:EP).

CVN webcast Florida Gas v. DOT live.

Charlene Amrhein was murdered by 20-year old Solim Kollissiba while in a common area of her apartment complex, the Charleston Club Apartments, in Sanford, Florida.

In Amrhein v. Concord Management, Ms. Amrhein’s husband and son claim that the apartment did not do enough to ensure the safety of the tenants.

For the plaintiff, Beers & Gordon’s David Beers told the jury that Mr. Kollissiba, who lived across the street, had entered the apartment complex repeatedly in the past and had never been confronted by anyone about what he was doing on the property.

Morever, said Mr. Beers, a courtesy officer and a marked police car were supposed to be at the site, but were not. A reasonably prudent site manager, according to Mr. Beers, would have taken more steps than Concord Management took to secure the property.

For Concord Management, Rissman Barrett’s Robert Jack told the jury that the plaintiffs lived in the apartment complex for a year-and-a-half and felt safe during that period, and even renewed the lease. The four on-site cameras were intended, said Mr. Jack, to protect the apartment’s property, not to provide security, and the plaintiff’s should not have expected that security cameras were provided. In fact, the lease specifically provided that the property managers did not provide security.

Finally, according to Mr. Jack, Mr. Kollissiba’s actions constituted a “sudden murder,” and there was nothing anyone could have done to prevent it.

CVN is webcasting Amrhein v. Concord Management live.

Resort Properties v. Cherry Investment involved a claim by real estate broker David Atwell’s sole proprietorship, Resort Properties, for a commission from the buyer of a Las Vegas resort hotel, Richard Alter and his company Financial Capital Investment.

Will Kemp, of Kemp, Jones & Coulthard, told the jury, “This case is about a broken promise and a misappropriated real estate commission.” Mr. Kemp said that David Atwell had been a real estate broker for 30 years and was “the premier real estate broker for hotel casino transactions in Clark County.”

According to Mr. Kemp, Mr. Atwell told Mr. Alter that the Alexis Park was for sale, determined that it could be made into a casino, and worked out a price of approximately $79M. Mr. Alter allegedly did not want to proceed at that time with the Alexis Park, but subsequently completed the Alexis Park deal for $75M. However, instead of paying Mr. Atwell the 2% commission that they had discussed ($1.5M), Mr. Alter allegedly paid a $2M broker’s commission to a “fake broker” intermediary, and then transferred it back to himself.

For the defendant, Morris Peterson’s Rex Garner told the jury that Mr. Atwell did not represent the buyer, and did not have any commission agreement with the buyer. Mr. Garner said that Mr. Atwell was adequately compensated by the seller at 0.75%, and there was no written consent to Mr. Atwell’s representing both the buyer and the seller. Moreover, the allegedly misappropriated $2M “commission” was in fact a proper fee to a third party for development services provided in connection with the deal, such as zoning changes.

Mr. Garner claimed that instead it was Mr. Alter was damaged by Mr. Atwell’s insistence across the years that he had been somehow representing Mr. Alter in the transaction.

The jury found in favor of the Mr. Atwell and awarded $1.5M.

UPDATE (April 12, 2011): 
On December 16, 2010, the Court entered Judgment in this case in favor of Plaintiffs in the amount of $538,963.98.  This is three times the jury verdict, and reflects the provision in Measure EE which requires that a tenant recover treble damages for all harms caused by a landlord’s knowing or reckless violation of the Ordinance.  The jury specifically found that the defendant had wrongfully endeavored to recover each Plaintiff’s unit, and that he did so “in knowing violation of Ordinance.”

On February 18, 2011, the Court awarded to Plaintiffs an additional $1,052,402.00 for attorneys fees in connection with the case, under provisions in Measure EE which provide for attorney fees to prevailing litigants.  Additional motions requesting fees and costs are still pending, and Plaintiffs expect to recover about an additional $70,000 pursuant to those motions. 

The defendant has filed a notice of appeal.  

The jury in the Pierre v. Cox landlord- tenant trial in Oakland awarded damages to all thirteen tenants.

Plaintiff attorney Steve McDonald represented 13 tenants from the 30-unit Monte Cresta apartment building. Mr. McDonald said that at the time defendant Dennis Cox purchased the property 38 people were living in the building, and over 17 had been living there for more than ten years. 

In closing, Mr. McDonald told the jury, “The tenants…believe that the defendant had a business plan when he purchased this property, and this plan included forcing the tenants out so he could raise the rents and the value of the property. He pushed for a rent increase that wasn’t proper, he subjected the tenants to living in a construction without any relief, without any attempt to work things out for them. He mismanaged the property, and he pushed unfair policies that he knew he could not enforce…he basically did whatever he thought he could get away with, and he did so in order to make more money.”

“The most glaring evidence there is,” Mr. McDonald told the jury, “is the economic incentive. You heard the defendant, the defense brought their expert, Mark Cohen, and he said there was no economic incentive for the defendant to push people out, remodel the units, and raise the rents. How trustworthy is that testimony? The defendant is an experienced and successful property developer…and he does not buy these properties to lose money…he explained his business plan to a lot of people. He explained his business plan to the hard money lenders…from the very beginning: drive up the rents, perform some improvements, get higher rents, and then refinance. Take the money out, and let’s do it again.” According to Mr. McDonald, the jury heard the defendant’s lender, and even the defendant’s electrician testify to this plan. “The economic incentive is plain as day.”

For the defense, Lowball Lynch attorney Kurt Bridgman asked the jury, regardless of whether the tenants should have received a three-week look ahead on planned renovations, “Was it an intentional act, to not give a three-week look-ahead? Was it intended to get people to leave? Is he serious about that? There are notices all over the place in this case. Is he really serious that because he didn’t give a three-week look-ahead that he wanted people to leave? As I said in my opening statement…he didn’t want anybody to leave because if everybody leaves it’s $900,000 out of his pocket. When he sent that first rent notice, if everyone left, it’s $900,000.”

“I think you have to ask yourself,” Mr. Bridgman continued, “Do you want to penalize a landlord who improves a building primarily for the benefit of the tenants, who are sitting right there, four of them still live there, do you want to penalize him for that?…Because if you do, I would think, who’s going to do it in the future?…There’s disruption going on, there’s no question. But was it done in normal working hours? Of course it was.

“Do you see any citations from the city of Oakland for work being done at midnight? If you want to get rid of a tenant, I imagine that’s the way to do it. You start a power saw in the middle of the night above their unit. That’s an endeavor to recover possession. You cut off utilities day after day after day. Through the night. They can’t use their unit at night. That’s an endeavor, that’s wrongful. Here, the building department found the work acceptable and approved it. It’s fine. There’s no building citations. The rent board itself approves the work. Where’s the wrongfulness?”

The jury found that with respect to all of the tenants the defendant wrongfully and knowingly endeavored to recover possession of their units in violation of the Oakland Just Cause ordinance, Measure EE. For some of the tenants, but not others, the jury determined that the defendant’s violation was in fact the reason they surrendered possession.

The jury awarded non-economic damages to all of the plaintiffs of between $10.5K-$15K each. For two tenants, the jury found that they had also been forced out by the landlord’s actions and awarded economic damages of approximately $10K each.  The total damage award was $179,655.

CVN webcast the Pierre v. Cox landlord-tenant trial live.

Pierre v. Cox involves claims that an Oakland landlord, Dennis Cox, improperly attempted to raise the rents of 13 tenants at the Monte Cresta Apartments. CVN is webcasting the trial live.

According to plaintiff attorney Steve McDonald, “The defendant had a business plan when he purchased the apartment building where the tenants lived. And this plan included forcing the tenants out so he could raise rents and increase the property value. The plan was that he would push for this huge rent increase. He would subject the tenants to living in a construction zone. He would mismanage the property while doing so. And he would implement an unfair dog policy.”

According to McDonald, the landlord was an experienced real estate developer and investor who managed apartments himself. Cox allegedly purchased three apartment buildings at the same time. Two of the buildings were financed with low-interest 30-year loans. But for the third property, the Monte Cresta apartments, Cox allegedly obtained a two-year loan at 10.5% interest, which would allow him to raise the rents due to a debt service increase.

Said McDonald, “The plan was to use his 10.5% loan as a pretext to increase the tenants rents. A debt service increase would be far greater borrowing from a hard money lender than if he went to a traditional lender or hot a different loan with a lower interest rate. Defendant’s plan also included that he was going to refinance the short-term loan in two years — after he passed on the suddent, drastic rent increases to the tenants.”

Defense attorney Kurt Bridgman, of Low, Ball, and Lynch, said that “Mr. Cox was an extraordinary man. He followed the Oakland rent law as written. He followed all the Housing Codes. He fixed up a property that had suffered 40 years of deferred maintenance. And that really is the sin in the plaintiffs’ eyes — that he fixed a property that they all had complained about for years and years.”

Bridgman said that Cox had put over $1M into fixing up this property. The work was done by licensed contractors, and was permitted by the City of Oakland. The Oakland rent board approved that there was a need for the improvements and the amount spent.

Morever, said Bridgman, no one ever paid the proposed $381 rent increase. The only amount ever paid was the amount provided by the Oakland rent board. Nor was there any physical injury or emotional distress. Bridgman characterized some of the plaintiffs’ evidence as “weak, tepid, suspicious, and potentially manipulative.”

CVN is webcasting the Pierre v. Cox landlord-tenant trial live from Oakland, gavel-to-gavel. 

CVN webcast live the closing arguments in Boca Aviation v. Proskauer Rose, and the jury is now deliberating.

In closing, plaintiff attorney Steven Katzman said, “This case is about Boca Aviation giving up something of value — the 15th Amendment — for nothing at all — the 19th Amendment…The cure was worse than the disease,” Katzman argued, “because we already had the right to put hangars on those 15 acres…and at [our lawyer's] insistence that we were fully protected, we listened to our lawyer…and we gave up that 15th Amendment.”

“If only our [our attorney] had said, ‘Hey, it’s impossible. You’ve given me an impossible job to do. Stick with the 15th Amendment: it’s valid and enforceable.”

According to Katzman, Boca’s attorney should have recognized that the 15th Amendment was valid, and advised Boca not to give up the “bird in the hand,” which was the 15th Amendment. The overwhelming evidence in the case, said Katzman, was that the 15th Amendment was valid, becase the need for hangars was affirmed by witness after witness, and by the airport authority’s own documents.

Boca requested damages of $64,363,646, but noted that this figure might be a too-conservative estimate of the lost profits.

For the defense, Boies Schiller attorney Mark Heise asserted that Proskauer was not negligent and did not breach any fiduciary duty.

The thing that Boca wanted done — the creation of a 19th Amendment that protected Boca’s position as the sole gas station at the airport — could not be done. In fact, the judge had ruled as a matter of law that no such Amendment could have been drafted.

According to Heise, Boca could only prevail if it showed that Proskauer gave a guarantee on the 19th Amendment, and that Proskauer should have known that the 15th Amendment would have served Boca better. Heise explained that a different lawyer who specialized in Aviation Law was responsible for that determination, not Proskauer.

But in any event, the effectiveness of the 15th Amendment would have depended on the airport authority’s willingness to fight the FAA, which the airport made clear it would not have done, and the FAA’s willingness to reverse a finding of an exclusive rights violation, which the FAA had never previously done. Plus, Boca would not have been able to establish the facts necessary to challenge the FAA ruling, because it was possible for another operator to provide service at the airport without taking land from Boca or creating an undue burden.

The FAA’s finding of that the 15th Amendment caused an exclusive rights violation, said Heise, made the 15th Amendment unenforceable. Therefore, the 15th Amendment was worth nothing, or at least its value was in reasonable doubt. Proskauer stated clearly in writing that the 19th Amendment did not fully protect Boca’s interest, but was proposed as a good strategy in response to the damage the FAA had done to the value of the 15th Amendment.

“How many times have we heard about the ‘bird in the hand?’” asked Heise. “If we look at the evidence…it makes it clear that Boca Aviation absolutely knew they didn’t have a guarantee…They knew it before this lawsuit. They knew it when they were sitting in this courtroom telling you they had a full guarantee.”

In rebuttal, Searcy Denney’s Jack Scarola argued that the legal advice given to Boca was grossly negligent because Boca was told that the 19th Amendment would as a practical matter prevent a new fuel provider from serving the airport because the flexibility that it provided would in reality leave no place to dispense fuel. According to Scarola there turned out to be additional risks associated with trading the 15th for the 19th Amendment, because the 19th Amendment turned out to be worth nothing.

As for the validity of the 15th Amendment, said Scarola, the airport authority was contractually bound under the Master Lease to defend Boca Aviation’s lease rights before the FAA unless they were voluntarily relinquished.  Those rights were voluntarily relinquished, according to Scarola, because they got bad advice about the value of the 19th Amendment.

Scarola also asserted that there never was a final decision by the FAA, only a preliminary determination without a hearing. Nor was the unlikelihood that the FAA would reverse its decision established by its prior record of not reversing this kind of decision, because Boca Aviation’s was in fact the first proceeding under the rule.

CVN webcast the Boca Aviation v. Proskauer Rose trial live.

CVN’s live webcast of Boca Aviation v. Proskauer Rose began with plaintiff attorney Steven Katzman, explaining the plaintiff’s view of the facts. According to the plaintiff:

Boca Aviation was a fixed base operator at Boca Raton Airport. Boca Aviation had a long-term lease on 45 acres, and was the sole provider of aviation services, including fuel, at Boca Airport.

An additional 15-acre lot became available, and Boca Aviation won the right to build additional hangars on the lot. The FAA subsequently suggested that the local airport authority develop the lot, and Boca Aviation agreed to give up its right to build the additional hangers, said the plaintiff, in exchange for the airport authority’s commitment to allow Boca Aviation to continue as the airport’s sole fuel supplier.

However, the lease amendments formalizing this agreement between the airport authority and Boca Aviation did not secure Boca’s claimed rights, but instead allowed the airport authority to assign the development rights to a third party, and, after a change in membership, the airport authority did bring in a competing fixed base operator.

Boca Aviation subsequently asserted breach of fiduciary duty and professional negligence claims against Proskauer, and sought to recover damages in excess of $60M for lost profits.

According to defense attorney Mark Heise, of Boies Schiller, “from 1984 when Mr. Greenberg had Boca Aviation at the airport, until 1996, he had a monopoly on the sale of fuel. And as we talked about in voir dire, sometimes it’s ok, and sometimes it’s not. From 1984 to 1996, when he had the only gas station at the airport, it was completely fine. But things changed in 1996. In 1996, a competitor wanted to open up and…Boca Aviation did everything they could to prevent competition at the airport, to keep out the other gas station. And when you do that, it’s against federal aviation law.”

According to the defense, the Proskauer Rose attorney clearly stated in writing that the FAA would not accept a proposed restriction on the airport authority’s ability to use the land, and that their client’s interest therefore was not fully protected. What in fact happened, said Mr. Heise, was that membership changes made the airport authority less friendly to Boca Aviation, and the new authority felt compelled to authorize a competing provider.

“Federal aviation law prohibits exactly what they planned,” said Mr. Heise. “Mr. Greenberg could not get this written guaranty…Lawyers are not magicians, and as a result…we are going to ask you to deliver a verdict that says Proskauer is not responsible for this.”

CVN is webcasting the Boca Aviation trial live.