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Tuesday
Feb072012

California Small Claims Court: An Effective Tool for Smaller Personal Injury Cases

Personal Injury Attorney 

by David B. Bobrosky
(818) 907-3254

 

Insurance companies are manipulating the civil justice system, and most people don’t have a clue that it’s happening.  

For years insurers have complained about the alleged “frivolous lawsuits” that are clogging the system.  But in reality, they are to blame for much of it in their efforts to discourage all claims no matter how fair or reasonable. 

 

Insurance Claims Process – The Unfair Game

 

Insurance companies realize that they can make it so expensive to litigate a smaller case that it can be cost prohibitive.  So rather than offer a reasonable settlement on cases they know deserve it, insurance companies refuse to offer anything, or will low ball claimants with offers less than the reasonable medical expenses they’ve incurred.  

Many times claimants, who would have settled for just paying the medical bills or slightly more, resort to seeking counsel. Once in litigation, insurance companies have their in-house counsel grind the cases and force the claimants all the way through written discovery, depositions and ultimately trial.  At that point, litigation costs usually exceed what claimants get from a jury.

This is where small claims court can be the equalizer.

Small Personal Injury Claims Advice

 

We get several calls per month pertaining to mild injuries suffered in car accidents.  Many times they are neck or back strains that have healed with a few months of physical therapy or chiropractic treatment.  These cases are just too small for our firm to handle.  In fact, because of insurance companies, they are becoming too small for most attorneys to handle.

We have advised many of our clients that they will be better off filing actions in small claims court.  This is where claimants can level the playing field against the biggest defendants without having to incur significant costs and attorney fees. 

Heather Peters proved this recently when she took Honda to small claims court over allegations that the automaker misrepresented the fuel economy of the Honda Civic Hybrid.  

Rather than participating in a class action suit that would have yielded her about $100 plus rebates toward a new car, Peters went her own way. She received an award of just under $10,000 – much more than participants in the class action case – in a California small claims court

There are many other advantages to small claims court: 

  • No attorneys are allowed.  Therefore, everyone is equal. 

  • Costs of pursuing claims are thousands of dollars less than a traditional Superior Court action. 

  • Cases are often heard within a couple of months, compared to more than a year for an average Superior Court case.

  • Rules of evidence are relaxed.  For the most part, claimants can just ‘tell their story.’ 

  • Cases are decided by Judges, Court Commissioners or Volunteer Judges, rather than angry jurors who do not want to be on jury duty.

  • The maximum award for bodily injury claims where the defendant is insured is $7,500.  The maximum award for most other individual claims recently increased to $10,000.

Small claims can be very effective in personal injury cases.  When litigation will be cost prohibitive, I advise the client of the pros and cons of small claims court.  If they choose to go to small claims court, I often times guide them through the process and help them prepare for their hearing.  

In every case I’ve helped an injured party, a reasonable award has been obtained.  Often times the award is as high, or higher, than a jury would award – with much less time, money and aggravation spent.  Thus, this leaves the client with more money in his or her pocket. 

California Small Claims Appeals: Insurance Companies Prolonging the Litigation 

 

Of course, reasonable, efficient awards are not good enough for insurance companies, so  they appear to appeal every small claims award in favor of a claimant – no matter how fair or reasonable.

A defendant who loses a case is entitled to one appeal of a small claims matter.  The appeals are heard by Superior Court judges, and attorneys are allowed in these proceedings. 

An appeal is still advantageous, however, compared to full blown litigation. Appeals are usually heard within 45 days, and depending on the judge can be more informal than a traditional court trial. For a basic personal injury matter, the appeals are often completed in less than a day. Even if an attorney must be hired, it is much cheaper to do so for a small claims appeal than full litigation.

In the appropriate case, small claims court can be a very effective tool for consumers.  It is a place where David can truly slay Goliath, and should be used more often.

David B. Bobrosky is a Los Angeles Personal Injury Attorney at our Firm. Contact him at dbobrosky@lewitthackman.com, 818.990.2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Friday
Feb032012

Will Madonna Sing “Girls Gone Wild” at the Super Bowl?

 

Los Angeles Business Litigation AttorneyFebruary 3, 2012
by Nicholas Kanter


Joe Francis, the founder of Girls Gone Wild, just sent a cease and desist letter to Madonna, NBC and the National Football League threatening to file a lawsuit if Madonna sings a track from her new album entitled “Girls Gone Wild, ” according to TMZ.com. In the letter, Francis claims Madonna’s use of the name violates his trademark rights in the brand.

Should Madonna be concerned?

Francis may have an uphill battle in light of the Ninth Circuit’s ruling in Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002).  The Mattel case involved Mattel’s famous Barbie doll and the Danish band Aqua’s song entitled “Barbie Doll.”  Mattel sued the music companies that produced, marketed and sold “Barbie Girl,” including MCA Records, Inc. and Universal Music International.  Mattel claimed that the use of “Barbie” in the title of the song “Barbie Doll” infringed its trademark.

The Ninth Circuit followed a test developed by the Second Circuit in Rogers v. Grimaldi, 871 F.2d 994 (2nd Cir. 1989) which involved a claim by the actress Ginger Rogers against the film “Ginger and Fred”; a movie about two Italian cabaret performers who made a living by imitating Ginger Rogers and Fred Astaire. 

The Rogers court “concluded that literary titles do not violate the [Trademark Act] ‘unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.’”  Mattel, 296 F.3d at 902.

Using the Rogers’ test, the Ninth Circuit concluded that the use of “Barbie” in the song title “Barbie Doll” did not infringe Mattel’s trademark.  Id.  The Ninth Circuit held: “the use of Barbie in the song title clearly is relevant to the underlying work, namely, the song itself.  As noted, the song is about Barbie and the values Aqua claims she represents.  The song title does not explicitly mislead as to the source of the work; it does not, explicitly or otherwise, suggest that it was produced by Mattel.  The only indication that Mattel might be associated with the song is the use of Barbie in the title.”  Id.

Based on the Mattel decision, Francis may have a difficult time prevailing on an infringement claim unless: (1) the title “Girls Gone Wild” has no artistic relevance to Madonna’s song; or (2) if it has some artistic relevance, Madonna’s song explicitly misleads consumers  as to the source of the song.  Madonna’s “Girls Gone Wild” track has not been released yet, so it is too early to say whether Madonna can satisfy the first prong of the test.  However, given Madonna’s popularity, it is unlikely that consumers will believe that Joe Francis wrote the song. 

Will Madonna perform “Girls Gone Wild?”  Will Francis sue if she does?  Will Tebow’s attendance at the Super Bowl overshadow the game itself?  We’ll have to wait until Sunday to see. 

 

Nicholas Kanter is a Los Angeles Business & Civil Litigation attorney whose practice focuses on intellectual property, employment, franchise & distribution, and real estate matters. You may reach him by calling 818.990.2120, or by e-mail: nkanter@lewitthackman.com.  




 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Friday
Feb032012

Internet Gambling: A California Plan B? 

 

 

by Stephan Mihalovits

Maybe it’s just me, but I would rather not see California open up a Pandora’s Box of internet gambling without a full and frank discussion beforehand.

As legislators in the Senate quietly move toward an internet gambling bill this year, there is a chance that is exactly what the state will do. But are we ready to gamble online?  As California’s insolvency situation enters its umpteenth year, the focus is on red ink, not the full potential benefits or consequences of internet gambling.

As a result of a recent U.S. Department  of Justice opinion, states across the country are looking to use internet gambling to fill budget holes. The DOJ concluded states are free under federal law to create internet lotteries within their states, reinterpreting the 1961 Wire Act to only prohibit intrastate gambling involving sports betting. Thus, with federal law out of the picture, states can legislate internet gambling within their borders and together with other states.

States like New Jersey, Connecticut, and Nevada have begun the initial legislative process. Governor Chris Christie said this month, “I think New Jersey should be in that business, I think we should be an epicenter for that business, but I want to do it right.”

Internet Gaming = California Dreamin'?

 

California is pursuing its own legislative efforts. Last year, two bills were introduced in the Senate, but both stalled. There is buzz in Sacramento that 2012 will provide the fiscal conditions necessary to pass an internet gaming law (a $13 billion deficit is projected for 2013). But for now Gov. Jerry Brown is playing cool to the idea.

But, in my opinion, the governor’s coolness is more of a poker face.

Based on Gov. Brown’s repeated calls for temporary tax increases as a budget solution, it’s clear his first preference is to pass a pair of November ballot initiatives that would raise taxes for five years. If both pass, he may nix the online gaming idea entirely or sign only a limited internet gambling bill. The problem is this strategy depends on voters voting for tax increases. Based on past precedent, I highly doubt voters will vote for them, especially the regressive sales tax.

What is Gov. Brown’s plan when the tax increases fail?  Answer: Plan B (and C, D, and E). I’m no psychic, but I believe November 2012, Gov. Brown will for the first time advocate his true position: he would rather have more revenue than more cuts. He will advocate some form of internet gambling.

But California lawmakers do a disservice to Californians by waiting to discuss the issue. Some people view gambling as taboo: a dangerous practice that leads to addiction, alcoholism, financial distress, and fatherless children. If our state is about to put gambling in our homes (and on our smartphones), our leaders should begin an honest and open discussion now.

There are plenty of legal and moral issues to discuss.

New technology will not limit internet gambling to stationary computers. Rather, our smartphones will become portable devices for cash money gambling. Smartphone gaming giant Zynga Inc. is pondering whether  or not to bet on online gaming.  This could lead to unforeseen harms. The easier it is to gamble, the easier it will be to make a terrible financial mistake. Imagine your 7-year old reaches to play a game on your iPhone and ends up losing thousands in a poker game. Or imagine a recovering gambling addict being sucked back in to his addiction through the ease of smartphone technology.

While Sacramento ruminates over more internet gambling, shouldn’t our leaders be preparing us for these foreseeable ethical issues?

Stephan Mihalovits is a Los Angeles Business Litigation Attorney. You may reach him by calling 818.990.2120, or via e-mail: smihalovits@lewitthackman.com.           

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Wednesday
Feb012012

Train Accident Tragedy: Dangerous Road & Railway Crossing Made Safer by Litigation

Injury AttorneyTrain Accident Lawyer

 

by David B. Bobrosky
(818) 907-3254

Many times dangerous conditions or negligent conduct are not changed until someone is injured and a lawsuit is filed.  

As part of a continuing series of articles on the Lewitt Hackman Personal Injury Blog, Lewitt Hackman attorneys will identify dangerous conditions or conduct from cases they have handled in the past, and how the conditions or conduct was changed as a result of the lawsuit. Below is such a case. 

Train Accident Attorney

A Dangerous Road & Railway Crossing

 

Our client was on the way home from work to have dinner with his wife, as he had done for the past 25 years. He traveled west down an old road that he had driven many times before.

As he traveled, he approached a railroad crossing from the east. When he approached the railroad crossing, another driver approached the crossing from the west. The intersection where the tracks cross the road is an “S” curve, with the railroad tracks in the middle of the “S.”  Unfortunately, there were no edge lines, lane lines, botts dots, or other signs guiding drivers through the intersection to safely follow the curve and stay in their own lane. 

The other driver, based on all accounts, failed to identify and negotiate the “S” curve and his car crossed into our client’s lane and struck his car head on. Our client’s car was stopped on the tracks, and severely damaged. 

Shortly after the collision, the signals started going off and the crossing arms came down – a train was coming. Despite a severely fractured leg, our client exited his vehicle through his window. Tragically, he was not able to completely escape and he was killed when the train plowed into him and his car. He was survived by a wonderful wife, and three great adult children.

When hired by his family, our office immediately investigated the scene of the accident. During that investigation, we determined that the accident was mostly caused by the dangerous condition of the railroad crossing. It was difficult for a driver to discern the curve, causing the driver to cross over into the other lane of traffic. Because this was not a heavily travelled area, there were no reports of other significant accidents. 

You can see a photo of the railroad crossing shot from a plane we hired to fly above and take photographs immediately after the accident in the image above. As you can see there are no lane lines guiding drivers through the crossing. 

A short time after the accident, the City painted lane lines as shown in this follow-up photograph, below right.Los Angeles Accident Injury Lawyers Making a Difference

As can be seen from the photographs, just the painting of the lane lines makes the curve significantly safer – and possibly would have prevented this tragic accident.

As part of our case, we hired traffic engineers to prepare renderings of what a safe crossing should look like, with additional lines and warning signs before and throughout the curve. After our case was settled, the City essentially made all of the changes suggested by our engineers. 

As with every case we handle, we attempt to obtain a fair recovery to compensate our clients for the injuries suffered as the result of another’s negligence. Equally important, is that our efforts result in dangerous conditions or conduct being changed so similar accidents do not happen again. We achieved both goals in this case. 

David B. Bobrosky is a Los Angeles Personal Injury Attorney experienced in train accidents and dangerous roadway cases. Contact him via e-mail: dbobrosky@lewitthackman.com, or by phone: 818.990.2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Jan262012

Roof Hatch Injury at Popular Mall

Injury AttorneyPersonal Injury Attorney

by David B. Bobrosky

(818) 907-3254

Many times dangerous conditions or negligent conduct could be easily avoided if a defendant did not put profits above safety. /p>

As part of a continuing series of articles on the Lewitt Hackman Personal Injury Blog, Lewitt Hackman attorneys will identify dangerous conditions or conduct from cases we have handled in the past, and how the conditions or conduct could have been avoided. Below is such a case.

 

A Dangerous Roof Hatch – The Problem

 

Our 20 year old client was working for a theatre complex at a popular local mall. One day he was instructed by his boss to escort a security guard to the roof so he could provide access for an air conditioning service worker.

The only way to the roof was to climb a 24 foot steel wall ladder to the top, where he then had to unlock the roof hatch and exit the hatch onto the roof. Our client successfully climbed the ladder and unlocked the hatch.

Next came the difficult part. The ladder stopped at the level of the roof. Typically, a ladder is required to extend approximately three feet above the level of a landing to allow the person climbing the ladder to get his or her whole body above the level of a landing and then safely step off.

This is a photo of the roof hatch depicting this problem:

Because the ladder stopped at the level of the roof, our client had to use his arms to try to pull himself out of the hatch and onto the roof. Unfortunately, our client could not do so and he fell 24 feet straight down. He shattered his leg, and eventually underwent a total of seven surgeries on his knee and ankle.

The Solution – Installing Safe Ladder Extensions or Rails

 

The builders of the mall could not extend the actual ladder three feet above the roof because the hatch would not be able to close. However, there were several other inexpensive solutions to this problem.

At the time the building was designed, there were several items that could have been attached to the outside of the hatch to act as a ladder extension or hand rail to assist a climber safely onto the roof. One was even aptly sold under the name of “Save a Life Ladder Extension.” Below is a photograph of one of these possible solutions:

At the time the building was constructed, there was a possible conflict between the federal and state regulations in terms of requiring an extension above the landing on the roof. However, through thorough investigation and discovery, our office tracked down all prior versions of the specifications manual. An early version of the manual included just such an extension.

In an apparent attempt to save costs, the extensions were removed from the final design specifications. Essentially our client suffered severe injuries because a company wanted to save a few hundred dollars.

Fortunately for our client, we successfully resolved the case prior to trial.  He received compensation for his past medical expenses and loss of wages, as well as for his future medical care. This was just another example of a company putting profits ahead of safety.

David B. Bobrosky is a Los Angeles Injury Attorney and Shareholder at Our Firm. You may reach him by e-mail: dbobrosky@lewitthackman.com.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120