Thursday, January 22, 2015

Premises Liability Cases

Motor vehicle accidents make up a large number of cases on the personal injury docket in Los Angeles. However, there are other common ways that plaintiffs can be injured. Unfortunately, people are sometimes hurt when they are a guest, or customer, on someone else's property.

Owners of property owe a duty to those individuals who enter onto their property. Owners must exercise ordinary care in the use, maintenance, and management of their property to avoid exposing people to unreasonable risks of harm. Unreasonable risks of harm could include: spills, broken stairs, ditches, banana peels, etc. These type of risks can occur naturally or artificially, meaning that it can be caused by untrimmed trees, or an employee neglecting his duties to clean. Either way owners can be held responsible for injuries.

If an owner does not exercise ordinary care, he or she may be liable if the harm caused by the lack of ordinary care is "foreseeable." For example, if an owner of a business does not repair a large hole located on the store's floor, and a customer falls in the hole and breaks his leg, the owner of the business would be held liable. It is "foreseeable" that a customer could fall into a large hole because it was not repaired. An example when negligence may not be found is when an extraordinary event caused the injury.

In the hypothetical above, it does not matter whether the owner was "actually" aware of the large hole. Owners can be held liable if they had "constructive knowledge." Constructive knowledge means that the owner should have been aware of the large hole because a reasonable prudent owner would have checked for large holes.

Although it is counter-intuitive, owners can be held liable for injuries to trespassers. Owners can also be held liable for injuries to guests even if the injuries were caused by a criminal. The plaintiff  in such a case would have to show that the risk of criminal harm was foreseeable, and that the owner failed to take steps to prevent the foreseeable risk of criminal harm. One example: a large sports team holds a game. During the game, two drunk rivals threaten one another. "I will stab you when the game is over," one of them says. Two employees of the sports team overhear the exchange and witness the banter. After the game, the shouter stabs the rival, because nothing was done by the sports team employees.

Injuries incurred on a property can cost thousands of dollars in medical bills, particularly if there are broken bones involved. It is wise to contact a personal injury attorney if you, or someone you know, has been injured as a result of the negligence of a landowner. Our office welcomes your calls and inquiries.






Sunday, January 11, 2015

Seeking Post-Conviction Relief



A mother leaves her seat in the courtroom and approaches the podium. The judge sits back and waits for her statement. As she is about to begin, tears drop from her eyes. “My son is innocent,” she says. “Please show him mercy.”

When a defendant is convicted and then sentenced, after a sentencing hearing, where family members may give statements, it is not the end of the case. Our judicial system provides a right to an appeal. The statutory right to an appeal also includes a right to appointed counsel, if the defendant cannot afford to retain one.

An appeal is limited to the “record.” The record is everything that happened before and after the trial – preliminary, trial, and sentencing hearings. Everything that is said by the prosecution, defense attorney, defendant, and witnesses are recorded. Materials submitted for evidence is also preserved for the record. Indeed, an individual unrelated to the case should be able to see “everything” that happened with a particular criminal case after it has concluded.

A defendant is referred to as the “appellant,” when he or she appeals. The first document submitted is the appellant’s opening brief. The opening brief is the opportunity for the appellant to make his or her arguments about why the conviction should be overturned.

Since arguments are limited to the record, the appellant cannot submit additional evidence nor have new witnesses testify. Put simply, the appellant can only raise legal issues related to the proceedings. Typically, appellants will argue that certain evidence should have been excluded during the trial. Or appellants may argue that there was a constitutional violation committed during the criminal proceedings – the trial judge made an erroneous ruling.

The opening brief will contain case law, statute, and argument. After it has been submitted, the state will have an opportunity to submit an opposition brief. The opposition brief will contain counter arguments about why the trial was fair, and why the conviction should stand. The appellant will get the last word, however. The appellant may file a reply brief.

If the appeal is denied, the appellant may petition for the California Supreme Court to review the court of appeal decision. Most often, the California Supreme Court will deny review unless the legal issues involve split decisions between the appellate courts, or the legal issue is novel and has not been heard before (which is rare).

An appellant, and his family, need not despair should the appellant lose his or her appeal. There exists post-conviction relief outside of an appeal. For centuries, a petition for writ of habeas corpus has existed. Writ of habeas corpus translates roughly to “why are you holding the body?”

A petition for writ of habeas corpus is a petition that allows a defendant to challenge his or her incarceration. Since it is not a direct appeal, new evidence is allowed. More often than not, new evidence will be submitted at the habeas level, like: DNA evidence, new witness statements or recants, and other exculpatory information. Habeas cases have been covered by the media. When an individual is exonerated because of DNA testing, for example, the proceedings are usually habeas related. A petition gives a chance to the defendant to right any wrongs that may have been done.

The same mother who cried now sits down in a more comfortable setting. Although her son is confined in a prison hundreds of miles away, she has some hope, even if small. An attorney approaches her and extends his hand. “How can we help you today?”

Our office welcomes your inquiries about post-conviction relief. Please remember that this blog contains no guarantees, assurances, or legal advice. If you have any questions, it is best to contact an attorney by phone. After a conviction , the burden shifts to the convicted.

Friday, December 19, 2014

Dog Bites and Strict Liability in California

We all love dogs. Well, most of us anyways. There is scientific evidence that supports that dogs are great mental health companions. Socially, they are important to a lot of dog owners' lives. Despite all of the love, dogs can also cause harm to individuals. Indeed, when I was young, and in Tennessee, a dog bit me. There were medical bills, and trauma that followed (even to this day at times).

Like other injury accidents, an owner of a dog can be sued for a dog bite. Under the common law, or laws developed through a number of cases, dog owners were routinely sued under a "strict liability" theory because their dog caused an injury to another. "Strict liability" means that the injured party did not need to prove negligence. It was much easier to prevail.

Dog bite lawsuits pursuant to strict liability under the common law required that the "domestic animal" exhibit dangerous propensities. Typically, dangerous propensities were proven by previous incidents when the dog harmed someone else. But, a dangerous propensity was also shown when the owner knew or should have known that the domestic animal could have caused injury to another person. Domestic animals also included cats, snakes, horses, and other pets. It's important to note that there was a distinction -- with wild animals.

If an owner of an exotic pet injured someone else, they could be held strictly liable without the dangerous propensity element. Thus, if a Las Vegas magician's tiger mauled someone, the magician could be held strictly liable even if the tiger never exhibited signs of having a dangerous nature before the incident. Contrast with the domestic animal lawsuit, a defendant could prevail if he could show that the domestic animal never exhibit dangerous propensities.

Fast forward to today. California enacted statutory law, which provides for strict liability in dog bite cases. There is no need to prove "dangerous propensities." California Civil Code 3342(a) states, in part that:

"The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner' s knowledge of such viciousness."

Does this statute prevent defenses? What if the dog was provoked by the actions of the injured party before the dog bite? Nothing in the Civil Code prevents a defendant from raising "comparative fault" or "assumption of risk" defenses. Therefore, if the plaintiff was a bad apple who hit the dog, the defendant dog owner may have a good case against the mean injured plaintiff.

In the event that you, or someone you know, was injured by a dog bite, it is wise to retain an experienced persona injury attorney. A lot of dog bites are serious. In some instances, plastic surgery is required. Experienced counsel can pursue a claim, most often with a homeowner's insurance policy, after a dog bite. Dogs are important to our lives but medical bills and pain and suffering should be addressed, if you, or someone you know, was a victim of a dog bite. We welcome your calls and questions. 



Friday, December 5, 2014

'Constructive Possession' in Drug Possession Crimes

Both federal and state governments are changing the way drug crimes are prosecuted. Sentencing guidelines that require strict prison terms are being discarded for more court discretion. States are also implementing drug courts, or diversion programs, that allow defendants to enter into drug treatment programs in lieu of jail.  There seems to be an understanding that drug offenders need treatment rather than punishment.

Even with positive changes in California, with respect to drug crimes, because of Proposition 47, which mandated that certain crimes be prosecuted as misdemeanors instead of felonies, there are still situations in which an accused may be wrongfully charged. For example, an individual may not even know that illicit drugs were near or by him/her at the time of his/her arrest.

Health and Safety Code sections 11350, et al prohibits the possession of certain controlled substances. "Possession" is not limited to drugs on a person, like in his pockets, wallet, or belongings. Possession can also be "constructive" or "joint."

"Constructive" possession has been defined in a number of cases on appeal in California. People v. Showers (1968) 68 Cal.2d 639 defined constructive possession as follows:

"The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control."

"The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. People v. Mardian (1975) 47 Cal.App.3d 1. However, merely being near a drug, or being in association with someone in possession of a drug, in of itself, was insufficient to establish possession under the law. Exercise or control of an area still requires proof beyond a reasonable doubt.

Let's give a hypothetical, when"constructive" possession may be in dispute. Roommate A is living with Roommate B to save money. Roommate A does not abuse drugs. Roommate A is a student with a steady job. Roommate B smokes methamphetamine, but does so privately. Roommate A is unaware of Roommate B's personal habits. The police, on a tip from an informant, execute a search warrant in Roommate A and Roommate B's shared room. Roommate B is on vacation. Roommate A is studying. The police find methamphetamine in Roommate B's drawer, which is near Roommate A's bed. The police arrest Roommate A.

In the hypothetical above, Roommate A may be able to get the case dismissed because he was not in possession of the methamphetamine, including "constructive possession." In spite of the fact that he was near the drawer, and could possibly open the drawer, under California law, Roommate A probably did not exercise dominion or control over the property in the drawer. He didn't have the requisite intent, nor did he exercise control of Roommate B's drawer.

Substance abuse is most often caused by disease and studies have shown that mental health services, not prison, is the best way to combat drug crimes. Nevertheless, there are good reasons to retain a criminal defense attorney if you, or someone you care about, has been charged with a drug crime. Experienced attorneys can see if alternatives to jail are available. Further, if there are facts of the case that suggest an accused may prevail at a preliminary hearing or P.C. 1538 hearing, a criminal defense attorney could aggressively advocate on your behalf. Our office welcomes your calls and questions.