California Personal Injury Litigation and Proof of Service for Electronic Service

By Michael Reiter, Attorney at Law.

Electronic service is a cost-effective manner of service, whether done in Federal cases with CM/ECF, or in California superior courts by stipulation, or in conjunction with electronic filing.  For California superior court cases, the Judicial Council has created an optional proof of service for electronic service, FORM POS-050/EFS-050, which needs to be used in conjunction with Form POS-o50(P).  However, if you follow the requirements of California Rules of Court Rule 2.251(g) the practitioner does not need to use the optional Judicial Council form.

California Rules of Court Rule 2.251(g) requires the following information:

(1)Proof of electronic service may be by any of the methods provided in Code of Civil Procedure section 1013a, except that the proof of service must state:

(A)The electronic service address of the person making the service, in addition to that person’s residence or business address;

(B)The date and time of the electronic service, instead of the date and place of deposit in the mail;

(C)The name and electronic service address of the person served, in place of that person’s name and address as shown on the envelope; and

(D)That the document was served electronically, in place of the statement that the envelope was sealed and deposited in the mail with postage fully prepaid.

(2)Proof of electronic service may be in electronic form and may be filed electronically with the court.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

Gophers Can Cause Trip and Falls

By Michael Reiter, Attorney at Law.

I went out for another walk today, in the late afternoon.  I love to see California native wildlife, like a California Pocket Gopher

I am a big fan of California wildlife, particularly Pocket Gophers, though not as much as my late friend Emma.  I had never seen a living pocket gopher before, but this individual poked his head up a few times, and I was able to get a picture of his head.  Unfortunately, I only had an iPhone to take a picture, and it was from about six feet away.

Gophers can cause damage to lawns.  They can also damage parks.  When I was a Deputy City Attorney for the City of San Bernardino, I defended a lawsuit involving an AYSO coach who allegedly tripped and fell in a field in Wildwood Park.  Because the case involved a public entity, the plaintiff had to plead and prove a dangerous condition of  public property cause of action, but with a private landowner, the standard is typically negligence.  The case also involved cross-complaints against the City’s pest controller contractor and the American Youth Soccer Organization.  If I recall correctly, the American Youth Soccer Organization, Inc. picked up the City’s defense under an express indemnification clause in a field use agreement.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517
Redlands CA 92373-5235
T: (909) 296-6708

W: http://michaelreiterlaw.com

What is a “dangerous condition of public property?”

By Michael Reiter, Attorney at Law.

A public entity may only be held liable for a dangerous condition of its property, not for simple negligence or premises liability.   Before I was in private practice helping plaintiffs, I received a good education in a variety of dangerous condition of public property cases when I was Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands.

A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is foreseeable that it will be used.”  Government Code § 830(a).  A public entity is liable for injury caused by a dangerous condition of property it owns or controls if the plaintiff establishes that (1) the property was in a dangerous condition at the time of injury; (2) that the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and either (i) a public employee, within the scope of his or her employment, negligent or wrongly committed an act or omission that created the condition or (ii) the entity had actual or constructive notice of the dangerous condition in sufficient time before the injury to take protective measures against the dangerous condition. California Government Code §§ 830, 835.

What are the kinds of scenarios that might involve two public entities, or a mix of public entities and private entities?  The scenarios I have seen as an attorney have included:

1. A city, a water district, and a private land owner, where a sidewalk panel was removed to replace a meter box, and the sidewalk panel was never replaced.  The plaintiff tripped and fell.

2. A city, a school district, and an adjoining land owner, and a nonprofit youth organization, where the plaintiff tripped over a utility cover, wherein the surrounding compacted dirt had eroded over the years, but no sidewalk ever existed.

3. A city, a county, and a private land owner, and a private party, where a motorcyclist died at an intersection jointly controlled by the city and county, when the motorcyclist was struck by the private party’s automobile.

4. A trip and fall that happened only in one city, but the plaintiff sued two cities because it was not clear which entity owned or controlled the sidewalk.

5. An injury to a person who was waiting at a bus stop from a city tree in a city park, but at a bus stop owned and controlled by a joint-powers authority transit system.

6. A flooding case wherein the flood control channel was owned by a county flood control agency, but the culvert and bridge were owned by a city.

California Government Code section 830(c) states “‘Property of a public entity’ and “public property” means real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the entity.”

“Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.”  Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.

Obviously, ownership is a key fact to prove.  Control can be more difficult.  In the case of a jointly controlled intersection, there is typically an agreement between the two public entities. Obtain and examine that agreement (either through discovery or by using the California Public Records Act).  Control can be established by deposing maintenance workers who have personal knowledge of the maintenance work done at the property, and to a limited extent, with written discovery.

In Bonanno v. Central Contra Costa Transit Authority, the California Supreme Court ruled that  “the location of public property, by which users are subjected to hazards on adjacent property, may constitute a dangerous condition” under Government Code sections 830 and 835.  Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 815-816.

Therefore, there are factual scenarios where more than one public entity can be responsible for one injury by pleading and proving a dangerous condition of public property cause of action.  In the flooding scenario noted above, the plaintiff also pled an inverse condemnation cause of action.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St. Suite 517
      Redlands, CA 92373-5235
T: (909) 296-6708

W: http://michaelreiterlaw.com

California Personal Injury Litigation – The Importance of Preserving Evidence

By Michael Reiter, Attorney at Law.

If you have been injured in an accident, the most important thing is to make sure you receive medical attention and medical attention for others around you.

However, even if you do not presently have the intention of recovering your damages, there are a few simple steps you can do at the time of the incident, and in the days and weeks following. Missing these opportunities can compromise efforts for compensation.

If you can, take pictures immediately.  With the quality of phone cameras increasing, take as many pictures as possible of the scene of the accident.  For example, in a slip and fall, the condition will be quickly remedied, so if you or your friends or family can take a picture, it can preserve important evidence.  Also, have someone take a picture of your visible injuries. The sooner the pictures are taken after the accident, the better.  In the case of a flooding event or fire, take video during the event.  Again, cameras have excellent video cameras these days.  The new Apple iPhone 4s takes full high definition video, for example.

If there are witnesses, try to get business cards or phone numbers, or some contact information.  If there is a police report, obtain it as soon as possible.  Obtain any other reports.

Get copies of your records regarding medical treatment including billing.  These records can be obtained from your medical providers.  Obtain records of time missed from work.

In slip and falls and trip and falls, the condition of shoes is often an issue.  Keep the shoes, and don’t wear them again.  If you have clothes or other property, preserve them, too.  If you have to repair property, such as a car, make sure that pictures are taken before the repairs.  Take pictures from different angles.  We no longer live in an age where you could only take a few pictures before running out of film.

Remember that you likely face statutes of limitations that can impact your ability to be compensated for your losses.  If a government agency is involved, typically a government claim is required before you file suit, and generally the government claim must be filed six months from the date of the incident.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 300 E. State St. #517
                   Redlands, CA 92373
Telephone: (909) 296-6708

Can two public entities be jointly responsible for the same injury under a dangerous condition of public property theory of liability?

By Michael Reiter, Attorney at Law.

A public entity may only be held liable for a dangerous condition of its property, not for simple negligence or premises liability.   Before I was in private practice helping plaintiffs, I received a good education in a variety of dangerous condition of public property cases when I was Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands.

A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is foreseeable that it will be used.”  Government Code § 830(a).  A public entity is liable for injury caused by a dangerous condition of property it owns or controls if the plaintiff establishes that (1) the property was in a dangerous condition at the time of injury; (2) that the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and either (i) a public employee, within the scope of his or her employment, negligent or wrongly committed an act or omission that created the condition or (ii) the entity had actual or constructive notice of the dangerous condition in sufficient time before the injury to take protective measures against the dangerous condition.  Government Code §§ 830, 835.

What are the kinds of scenarios that might involve two public entities, or a mix of public entities and private entities?  The scenarios I have seen as an attorney have included:

1. A city, a water district, and a private land owner, where a sidewalk panel was removed to replace a meter box, and the sidewalk panel was never replaced.  The plaintiff tripped and fell.

2. A city, a school district, and an adjoining land owner, and a nonprofit youth organization, where the plaintiff tripped over a utility cover, wherein the surrounding compacted dirt had eroded over the years, but no sidewalk ever existed.

3. A city, a county, and a private land owner, and a private party, where a motorcyclist died at an intersection jointly controlled by the city and county, when the motorcyclist was struck by the private party’s automobile.

4. A trip and fall that happened only in one city, but the plaintiff sued two cities because it was not clear which entity owned or controlled the sidewalk.

5. An injury to a person who was waiting at a bus stop from a city tree in a city park, but at a bus stop owned and controlled by a joint-powers authority transit system.

6. A flooding case wherein the flood control channel was owned by a county flood control agency, but the culvert and bridge were owned by a city.

Government Code section 830(c) states “‘Property of a public entity’ and “public property” means real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the entity.”

“Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.”  Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.

Obviously, ownership is a key fact to prove.  Control can be more difficult.  In the case of a jointly controlled intersection, there is typically an agreement between the two public entities. Obtain and examine that agreement (either through discovery or by using the California Public Records Act).  Control can be established by deposing maintenance workers who have personal knowledge of the maintenance work done at the property, and to a limited extent, with written discovery.

Also, conditions of adjacent property can make public property hazardous.  In Bonanno v. Central Contra Costa Transit Authority, the California Supreme Court ruled that  “the location of public property, by which users are subjected to hazards on adjacent property, may constitute a dangerous condition” under Government Code sections 830 and 835.  Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 815-816.

Therefore, there are factual scenarios where more than one public entity can be responsible for one injury by pleading and proving a dangerous condition of public property cause of action.  In the flooding scenario noted above, the plaintiff also pled an inverse condemnation cause of action.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St. #517
      Redlands, CA 92373-5235
T: (909) 296-6708

W: http://michaelreiterlaw.com

California Personal Injury Litigation – The Rule of 35 In Unlimited Civil Cases and Limited Civil Cases

By Michael Reiter, Attorney at Law.

Discovery is an important part of any personal injury case.  There is some confusion about the Rule of 35.   The Rule of 35 limits certain discovery in unlimited civil cases unless there is a declaration of necessity.  This change in the Discovery Act thankfully changed before I started practicing law. Earlier in my career, when I was a Deputy City Attorney for the City of San Bernardino, I saw form files with interrogatories numbering in the hundreds in routine civil cases.

The “Rule of 35” is the limit on special interrogatories and requests for admission (except for  in limited civil cases, discussed below:

For special interrogatories, the Rule of 35 is stated as:

(a) A party may propound to another party either or both of the following:

(1) Thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action.

(2) Any additional number of official form interrogatories . . .

(b) Except as provided in Section 2030.070, no party shall, as a matter of right, propound to any other party more than 35 specially prepared interrogatories.  If the initial set of interrogatories does not exhaust this limit, the balance may be propounded in subsequent sets.

(c) Unless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.  California Code of Civil Procedure section 2030.030.

For requests for admission:

(a) No party shall request, as a matter of right, that any other party admit more than 35 matters that do not relate to genuineness of documents.  If the initial set of admission requests does not exhaust this limit, the balance may be requested in subsequent sets.

(b) Unless a declaration as described in Section 2033.050 has been made, a party need only respond to the first 35 admission requests served that do not relate to the genuineness of documents, if that party states an objection to the balance under Section 2033.320 on the ground that the limit has been exceeded.

(c) The number of requests for admission of the genuineness of documents is not limited except as justice requires to protect the responding party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.   California Code of Civil Procedure section 2033.030.

Discovery in Limited Civil Cases is, appropriately, limited. Limited Civil Cases are subject to the grab-bag Rule of 35.

As to each adverse party, a party may use the following forms of discovery:

(a) Any combination of 35 of the following:

(1) Interrogatories (with no subparts) . . . .

(2) Demands to produce documents or things . . . .

(3) Requests for admission (with no subparts) . . . .  California Code of Civil Procedure section 94.

Note that California Code of Civil Procedure section 94(a)(1) says”Interrogatories” and not “Specially prepared interrogatories” like in California Code of Civil Procedure section 2030.030(a)(1).  Therefore, even though there are limited civil form interrogatories (which are simplified and should be used in Limited Civil Cases ), care should be taken in choosing each form interrogatory. Each interrogatory counts towards the grab-bag rule of 35.  Similarly, demands to produce are subject to the grab-bag Rule of 35 in limited civil cases.

Discovery should be used like jewelers’ tools to discover evidence necessary in a civil action.  The Rule of 35 limits ultimately makes the practice of law better and reduces unnecessary expense for clients.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 300 E. State St. Suite 517

                  Redlands CA 92373-5235
Telephone: (909) 708-6055

How to Answer Form Interrogatory Number 17.1 on Personal Injury Form Interrogatories

By Michael Reiter, Attorney at Law.

Discovery is an important part of any personal injury case.  Form Interrogatory Section 17.0 is labeled Responses to Request for Admissions.  This is commonly served in a personal injury case in conjunction with a Request for Admissions.  The text of Form Interrogatory Number 17.1 is:

Is your response to each request for admission served with these interrogatories an unqualified admission?  If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.  Form Interrogatory 17.1 California Judicial Council Form DISC-001 (Revised January 1, 2008), Page 7 of 8.

 

The words in boldface capitals in the interrogatories are defined in Section 4 of Form Interrogatories-General.   ADDRESS is defined as “street address, including the city, state and zip code.”  PERSON means “a natural person, firm, association, organization, partnership, business, trust, limited liability company, corporation, or public entity.”  DOCUMENT means “a writing, as defined in Evidence Code section 250, and includes the original or a copy of handwriting, typewriting, printing, photostats, photographs, electronically stored information, and every other means of recording upon a tangible thing and form of communicating or representation, including letters, words, pictures, sounds, or symbols, or combinations of them.”

How, then, does a plaintiff or defendant answer Form Interrogatory Number 17.1?  Here is an example.   If the Request for Admission, Number 9 is “Please admit that YOU own the property where the PLAINTIFF was injured on the date of the INCIDENT,” and you did not admit the Request for Admission, the response would be

Response to Form Interrogatory Number 17.1:

No.

(a) Request for Admissions, Set One, Request 9;

(b) Defendant did not own the property where the Plaintiff was injured on the date of the incident because Defendant had sold the property to Cr0ss-Defendant City of Rancho Muscupiabe,  on August 21, 2009;

(c) Defendant, 300 E. State St. #517, Redlands, California, (909) 296-6708  Cr0ss-Defendant City of Rancho Muscupiabe, 1200 Hill Drive, Rancho Muscupiabe, CA 92407, (909) 708-6055.

(d) Quitclaim deed, a recorded copy which is in possession of Cross-Defendant  City of Rancho Muscupiabe, 1200 Hill Drive, Rancho Muscupiabe, CA 92407, (909) 708-6055.

 

If each response to the Request for Admission is an unqualified admission, then the answering party must simply respond to Form Interrogatory 17.1 in this way.
Response to Form Interrogatory Number 17.1:

Yes.

This interrogatory is an important tool because it explains why a party has denied a Request for Admissions, and allows the asking party to detail why the party is not admitting to certain facts.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 300 E. State St. #517 Redlands CA 92373-5235

Telephone: (909) 296-6708