We are well known for handling complex, multi-party litigation in a wide variety of substantive areas and are among the very best in California for handling high-stakes regulatory enforcement matters. Much of our success is attributable to the fact that we do not hesitate to try cases to verdict or administrative ruling.
Winning a $10.1 Million Judgment in a Business Fraud
Case Arising Out of Diverted Pharmaceutical Products
Only four months before trial, the Firm was retained by a pharmaceutical company that had been defrauded by a grey-market diverter working through a front company located in New Zealand. While the former attorneys for the client had gathered some evidence, the case was far from ready for trial. Compounding the difficulty of the case was the fact that the client had previously sued the diverter, and had settled with him in reliance upon his assertion that he was an innocent victim of the New Zealand entity. Under the settlement agreement, the diverter had returned some of the fraudulently diverted product. However, when the client later discovered that the diverter was not an innocent victim, but was in fact the architect of the diversion scheme, the client did not pay for the product. The diverter sued the client to enforce the settlement agreement. In order to prevail, we had to prove that the diverter was in fact working with the New Zealand entity, that the settlement agreement was induced by fraud, and that the fraudulent diversion of less than $300,000 worth of product caused millions of dollars in damages to the client. Following a lengthy court trial, the Judge ruled that the settlement agreement could not be enforced, found in our client's favor on all four causes of action alleged in the cross-complaint, and awarded our client over $10 million in damages, including $2 million in punitive damages. Prior to trial, the diverter had refused to offer any amount in settlement, insisting that the client pay him.
The Firm then moved for an award of attorneys’ fees and costs so that the client would be fully compensated for the loss it suffered. We argued that our client was entitled to such an award because we defeated the plaintiff’s attempt to enforce a contract that contained a clause providing for the recovery of attorneys’ fees. The plaintiff’s attorneys argued that the fees were unreasonable, and that the costs incurred were not recoverable. The Court agreed with our position, and awarded an additional $860,000 to our client.
The decision has already caught the attention of the legal press and is being reported on Verdict Search. In addition, trade publications, like the Drug Store News, have published articles regarding the decision.
Matt Bures and Hillary Booth led the trial team which included John Lawrence and Shirin Kiaei.
Successfully Representing a Northern California City in a High-Stakes Toxic Tort Lawsuit Initiated by Thirty-Two Plaintiffs and Organized by Erin Brockovich
Richard Dongell led the Firm’s trial team (including Tom Vandenburg, Mike Gallagher, and Paul Rasmussen) in successfully representing a Northern California City sued by 32 plaintiffs in a case personally organized by Erin Brockovich. The suit alleged that the City caused or contributed to PCE and TCE contamination in groundwater from which the plaintiffs’ families drew their drinking water. Plaintiffs alleged numerous personal injury claims, including microcephaly and lissencephaly. Plaintiffs had been making collective settlement demands in the $30 to $50 million range. But following the Court’s granting of our partial motion for summary judgment, and faced with the remaining deficiencies in plaintiffs’ case that we addressed in our motions in limine, plaintiffs’ counsel so substantially reduced their demand on the eve of trial that the City was able and pleased to settle the entire case for $1.5 million.
Successfully Defending Executives in a $10 Million Business Fraud Case
The Firm represented several principals of a failed record company which had a distribution agreement with EMI. The principals included successful entrepreneurs and a well-known music promoter and producer, having been involved in numerous gold record promotions and productions. They were sued by a disgruntled investor who sought to recover over $10 million. Following a six-week trial before Los Angeles Superior Court Judge Munoz, our trial team, composed of John Lawrence, Matthew Bures, and Jason Booth, obtained a complete defense judgment.
Capping off a Major Trial Victory, Appellate Proceedings, Successful Petition for California Supreme Court Review, and Even Intervention by Governor Schwarzenegger and the California Legislature
Richard Dongell led the Firm’s trial team (including Josh Levine and Chris Johnson) in representing one of the nation’s leading shopping center developers in connection with litigation brought by a consumer group challenging the approval of a land exchange underlying the development of the Pike, a major waterfront development in the City of Long Beach. After the Firm achieved a trial victory, this victory was reversed on appeal. Subsequently, however, the Supreme Court of California granted our petition to review the appellate court decision.
During the pendency of the Supreme Court’s review, the legislature passed and Governor Schwarzenegger signed a law explicitly authorizing the type of land exchanges being challenged, thus rendering the appeal moot. The consumer group nonetheless attempted to claim victory based on these developments, and filed a motion in the trial court seeking over a million dollars in attorneys’ fees. We successfully defeated this motion by demonstrating to the Court that the consumer group had not provided a “substantial benefit” to the public, as the primary effect of the litigation was the passage of legislation that the consumer group had opposed. As such, the group was awarded nothing in their suit.
Winning a $24.2 Million Verdict – The Seventh Highest Awarded in California in 2006
John Lawrence and Joshua Levine were successful in bringing in a 24.2 million verdict in favor of a medical corporation and its principal in a hard-fought and complicated breach of contract case against a Northern California Hospital Group. Following a five and a half week trial in Yuba County, City of Marysville, our client prevailed on all causes of action against the Hospital Group, with the jury awarding our clients $14.2 million in compensatory damages and $10 million in punitive damages – the largest verdict of its type in California to date. The jury unanimously found that Fremont-Rideout Medical Group breached the contract with our clients, and otherwise acted improperly in terminating the relationship. The jury rejected the Hospital Group's arguments that the termination of the contract and related privileges was justified. The highest settlement offer made by the Hospital prior to trial was $5,000.
Mr. Lawrence and Mr. Levine were honored to accept awards in December, 2006, when the verdict was recognized by California trial lawyers as the Outstanding Verdict of 2006. The verdict was included as one of the National Law Journal's top 100 verdicts in the nation for 2006, and was recognized by The Daily Journal as the seventh highest California jury verdict that year. The case is now pending on appeal before the Third District Court of Appeal in Sacramento.
Successfully Maneuvering a Complex Environmental Matter through Trial
Complex environmental cases rarely proceed to actual trial; however, Richard Dongell, Tom Vandenburg and Josh Levine conducted the trial of a complex environmental case in San Bernardino County involving a dispute between the Firm’s client, a large manufacturer, and its former subsidiary (now controlled by different owners) over responsibility to clean up historic contamination. Prior to trial, the Firm first eliminated a $1.4 million breach of contract claim against our client by summary adjudication motion. On the morning of the first day of trial, the former subsidiary offered to pay $400,000 to settle. Our client declined this offer and proceeded to trial. After eight days of trial, however, the former subsidiary agreed to pay $1.35 million, an amount well within the range for which our client was seeking to recover, and the parties settled. Coupled with the breach of contract victory, this resulted in a 2.75 million swing in our client’s favor.
Defeating Toxic Tort Claims Brought By a Group of More Than 200 Plaintiffs
In 2007, the Firm, led by Jason Booth as lead counsel for a joint defense group of more than 70 defendants, brought and argued motions challenging the sufficiency of a toxic tort complaint brought by more than 200 former employees of a Southern California plumbing supply company. Significantly, while the Firm had won several prior victories in this case on similar grounds, the Court granted the motion without leave to amend, effectively ending the litigation. The case was then dismissed by the Court and is pending appeal taken by the plaintiffs. More specifically, the Firm served as Joint Defense Liaison Counsel for the entire defense group and drafted most of the moving papers over the case’s 3 -1/2 year history. The Court granted the Firm’s motion challenging the plaintiffs’ Fourth Amended Complaint, holding that all the claims by all the plaintiffs were time barred (i.e. that the statute of limitations had expired). The Court also ruled that the plaintiffs’ claims had not been pled with adequate specificity to identify which of the plaintiffs’ alleged illnesses were supposedly attributable to each defendant’s product(s).
The plaintiffs served Notice of Appeal, and will be filing their opening brief shortly. Jason Booth of the Firm will again be serving as lead counsel for the defense group and preparing the principal respondent’s brief in the appeal.
Obtaining a Dismissal for Our Client in Complex Groundwater Contamination Litigation
The Firm, led by Richard Dongell, Josh Levine, and Associate Paul Rasmussen, represented a large aerospace defense company in a multi-party groundwater clean-up action initiated by the Orange County Water District. The District is seeking damages in excess of $50 million to clean up alleged groundwater contamination in a large area of northern Orange County. The suit involves numerous defendants and cross-defendants, all of whom were alleged to have conducted manufacturing operations involving the use of volatile organic compounds (“VOCs”) during various periods from the 1950s to the 1990s.
Our client, which had conducted manufacturing operations in the general area since the 1980s, was brought into this action through a cross-complaint filed by another major aerospace corporation. After investigating and closely evaluating the evidence regarding our client’s operations, the Firm moved early in the litigation for summary judgment arguing that the evidence did not support a causal link between our client’s alleged use of VOCs and the contamination presently alleged to exist.
Due to the strength of the motion and its supporting evidence, the aerospace corporation agreed to dismiss our client rather than suffer the negative implications a successful ruling would have had on its claims against other parties it had sued. Our client was thereby able to avoid a lengthy and costly litigation.
Successfully Resolving a High-Exposure Medical Device Failure Case
Plaintiff was claiming to suffer from acute myelogenous leukemia, or AML, as a result of radiation exposure that occurred while working for his then employer—a large aerospace defense contractor. Plaintiff alleged that had our client’s product —a pocket-held radiation detection device—worked correctly, he and/or his employer would have known that he was being exposed to radiation and therefore could have taken the appropriate precautions.
Throughout the litigation, plaintiff consistently demanded a seven-figure settlement. In response to plaintiff’s claims, Richard Dongell, Michael Gallagher, and Associate Paul Rasmussen mounted an aggressive discovery campaign, and analyzed everything about plaintiff’s alleged exposure, and the performance of our client’s product. Based on our findings and consultation with experts, we filed a motion for summary judgment arguing that there was no evidence that our client’s product did not work as expected and intended, and therefore no evidence that plaintiff was exposed to any appreciable amounts of radiation while allegedly wearing our client’s product. After considering our motion, plaintiff abandoned his seven-figure demands as to our client, the medical device manufacturer, and accepted $19,500 to settle his claims against our client.
Recovering Our Clients’ Investment
Brought in at the eleventh hour, the Firm achieved a complete victory for two of our clients in a three day arbitration. The clients had invested in a unique niche market—high-tech modular car wash buildings—previously manufactured and sold only in Europe.
Our clients had acquired master distributorship rights for this novel concept throughout most of the Western United States, and had begun to establish sub-distributorships, when it became apparent that the supplier was not able to perform. The clients initiated the arbitration, but brought our Firm in to represent them only days before the arbitration was to begin.
Led by Matt Bures, we successfully prosecuted the arbitration, obtaining an award of 100% of our clients’ investment, together with interest and attorneys fees.
Successfully Representing a Major Manufacturer In its Case Against a Customs Broker and Customs Attorney
The Firm, led by Richard Dongell and Josh Levine, represented a major Southern California manufacturer in a case arising from negligent advice given to it by its customs broker and customs attorney, which led to the manufacturer being assessed a seven-figure amount in fines and penalties.
The Firm filed a complaint against the defendants under the theory that they were responsible for these assessments as the manufacturer had relied upon their advice. The defendants initially declined to make a serious settlement offer. However, after we uncovered crucial documents during discovery, and successfully defeated the defendants’ motion for summary judgment, the defendants entered into settlements with the manufacturer for a total amount in excess of the assessed fees and penalties.
Extricating Our Client From High-Stakes Escheatment Litigation
In recent years, plaintiffs’ lawyers have been filing class action lawsuits against various businesses, as well as California itself, alleging that property has been wrongfully escheated. Escheatment is the statutory process by which unclaimed property in the possession of public entities and banks is transferred to the State Controller’s Office after the information on the location of the true owners of the property has been lost.
In 2004, one such case was brought by a plaintiff named Richard Valdes against a large aerospace defense company client of the Firm. As our client had transferred the controverted property (undeclared public company stock) to California under the direction of the State Controller, and with his express approval, the Firm, led by Richard Dongell and Josh Levine, first persuaded the State Controller’s Office to indemnify our client against the escheatment claim. Subsequently, the Firm, which remained as defense counsel to our client, successfully obtained summary judgment against the claim under two alternative theories: one, that an immunity statute barred the claim, and two, that the statute of limitations barred the claim.
Mr. Valdes went on to prosecute his claim, however, against the State Controllers’ Office, and in 2007 obtained a preliminary injunction against the State of California essentially shutting down its escheatment program. In doing so, the Court held that the State Controller’s Office was not giving adequate notice to the owners of property before the property was transferred to the State.
The injunction resulted in a $442 million shortfall in the State’s budget, as it could no longer obtain funds through the escheatment process. Not surprisingly, the litigation resulted in widespread coverage, including articles in the Los Angeles Times and other major news outlets.
As the subsequent litigation was expensive and time-consuming, we were pleased that we were not only able to remove our client from this litigation at an early stage, but that we were also able to recover from the State of California our client’s attorney fees and costs.
Obtaining a $1.25 Million Settlement for El Dorado County, California
The Firm recently reached a favorable settlement of $1.25 million with several third party defendants in a complex environmental matter known as United States v. El Dorado County, et al. The case concerns the remediation of the Meyers Landfill Site in South Lake Tahoe, where groundwater investigations have revealed both vinyl chloride and heavy metal contamination. The Site operated as a municipal landfill from approximately 1947 to 1972. The lawsuit was filed by the United States Department of Justice, on behalf of the United States Forest Service, against El Dorado County, California, and the City of South Lake Tahoe, California.
Richard Dongell and Tom Vandenburg, along with Associate Shirin Kiaei, have defended the case for El Dorado County. Shortly after appearing in the case, the Firm investigated the history of the Site, identified several potential third party defendants that sent waste to the Site, and filed a third party action against these parties, claiming that they shared in the responsibility under the Superfund statute, CERCLA, for cleaning up the Site and protecting Saxon Creek, which eventually flows into Lake Tahoe, from any possible contamination. The Firm then aggressively prosecuted these claims and developed additional evidence in discovery connecting these parties to the Site. We also worked closely with Dr. Kirk Brown, a nationally recognized expert on the subject of municipal solid waste streams, to support our claim against these parties.
Ultimately, these parties agreed to pay $1.25 million to settle our client’s third party claims. This monetary recovery will bridge a major gap in funding the cleanup.
Successfully Defending Asbestos Litigation
Jason Booth and Associate Dan Cho of the Firm successfully defended an asbestos-based suit brought by the family of a factory worker who had died of allegedly asbestos-related lung cancer. The Firm represented the supplier of insulation products, who had been accused of contributing to the decedent's illness.
However, the Firm brought a summary judgment motion challenging the Plaintiffs' ability to prove causation. The motion appeared likely to succeed because we were able to demonstrate, as a matter of law, that the client's products did not contribute, and could not have contributed, to the decedent's asbestos-related illness.
The Plaintiffs were concerned about the likely success of the Firm's motion, and their potential liability for attorney fees and costs, and therefore agreed to dismiss their claims with prejudice prior to the hearing, in exchange for a waiver of costs.
Forcing the Dismissal of a Medical Device Failure Case
The plaintiff allegedly fractured her hip while using a medical device manufactured by our client and was allegedly wheelchair bound. In response, Richard Dongell, Michael Gallagher, and Associate Ani Adjemian attacked plaintiff’s claims, propounding written discovery, noticing her deposition and interviewing her doctors, all in an effort to demonstrate that (1) plaintiff’s injury was not as bad (as she claimed as she had recently taken a trip out of the country without a wheelchair); (2) the warnings provided with the device were adequate and clearly explained how to use the device; (3) plaintiff’s improper use of the medical device caused her injuries; and (4) the medical device was not defective.
Rather than confront and explain away the evidence we had obtained, plaintiff voluntarily filed a dismissal of her claims against our client. We believe the plaintiff was particularly frustrated with our discovery that she took a lengthy, foreign trip without the use of a wheelchair—a central claim of her alleged damages.
Defeating a Prop. 65 Claim Asserted By Plaintiffs and Supported by the California Deputy Attorney General
Plaintiffs filed suit against multiple defendants, asserting several causes of action, including one for Prop. 65 and another pursuant to Business & Professions Code section 17200 (B&P 17200). Immediately, however, we discovered that the 60-day notice served in advance of the lawsuit, as required under Prop. 65, was deficient in that plaintiffs failed to provide the facts necessary to put the alleged violators on notice of what they did wrong and how they violated Prop. 65. Further, and based on recent changes in the law, plaintiffs could no longer rely on Prop. 65 to support their B&P 17200 claim. Accordingly, we attacked both causes of action by motion, and asked the Court to dismiss both without leave to amend, as the defects set forth above were jurisdictional, and therefore incurable. The Court agreed, granted our motion, and dismissed both causes of action without leave to amend. Richard Dongell, Michael Gallagher, and Associate Michael Gold worked together in developing these arguments.
Continuing To Obtain Dismissals For Our Clients in Mold-Related Lawsuits
The Firm has enjoyed continued success in the past year representing clients in construction-related matters.
In the past few years, we have noticed a steady increase in the number of mold-related claims being filed. These plaintiffs are not only claiming property damage, but bodily we find it surprising that plaintiffs still claim to be injured as a result of mold injury as well. Given the mounting medical literature on mold- exposure, particularly when they do not present a unique medical condition or related bodily injury claims, circumstance that would give rise to a possible causal connection.
Nonetheless, we have been successful in convincing several plaintiffs to dismiss these claims, particularly with respect to bodily injury. To the extent plaintiffs refuse to voluntarily dismiss, we typically file motions for summary judgment to defeat such claims based on several defenses. The Firm recently won a summary judgment motion, for example, in a mold exposure lawsuit venued in Sacramento, based on a statute of limitations defense. The lawyers that are most involved in defending these cases are Richard Dongell, Jason Booth, Michael Gallagher, Dennis Naish, and Associate Shirin Kiaei.
In another matter, we successfully convinced counsel for a mold plaintiff of the lack of value of the plaintiff’s claim, leading plaintiff’s counsel first to abandon their class action allegations, and then to withdraw from the case altogether. The one remaining plaintiff is now proceeding in pro per.
Protecting the Business of a Transportation Company Critically Threatened by Regulatory Action
The Firm, through Hillary Booth, represented a waste hauling business in an administrative case brought by the California Department of Motor Vehicles attempting to revoke the waste hauler’s Motor Carrier Permit after it received an “Unsatisfactory” rating by the California Highway Patrol. Through a companion Superior Court proceeding initiated by the Firm, we obtained a temporary restraining order against the DMV, preventing it from revoking the permit during the proceedings. Through cross-examination of the CHP inspector and expert testimony, we established that the vehicle inspections had not been done properly, that the waste hauler did not present a danger to the public, and that the permit should not be revoked.
