Gallardo v. Ponce Ground Services, LLC, et al., San Bernardino Superior Court, Case No. CIVSB2306815

Date of Verdict:  April 2, 2026

Demand:             $ 2,700,000
Result:                  Complete Defense Verdict

Wrongful death motorcycle versus tractor-trailer collision.

Facts and Background:  The accident occurred on April 25, 2021, at the intersection of E. Orange Show Road and N Washington Avenue in San Bernardino, California.  Plaintiffs allege the defendant driving a tractor-trailer westbound on Orange Show Road started a left turn onto southbound Washington Avenue, resulting in the collision with the motorcyclist.  At the time of the collision, the defendant was hauling an empty trailer during the course of his work as a truck driver.   

Plaintiff’s Contentions:  Plaintiff, the son of the motorcyclist, brought the wrongful death action.  Plaintiff admitted the motorcyclist was partially at fault, however, alleged that the truck driver was negligent in causing the collision. Plaintiff also contended that the truck driver’s employer and trailer owner were responsible for the actions of the truck driver. 

Defendant’s Contentions:  The motorcyclist was unlicensed, uninsured, intoxicated, speeding at nearly 100 mph, above the speed limit of 50 mph, and wearing a decorative helmet not approved by the Department of Transportation for safety against head impacts – crashed into the rear wheels of the trailer while the tractor-trailer was making a left turn. The investigating police officer did not attribute any fault to the truck driver. Rather, the San Bernardino Police Department performed an in-depth investigation and concluded that the motorcyclist was at fault for causing the subject accident because he was driving too fast in violation of California Vehicle Code section 23350.

This time 4 weeks ago, Plaintiff made a demand for $2.7M. After closing, the demand dropped to six figures.  A few hours later, a very good trial result! 

Partner Brian Buddell and Demler Armstrong are happy we could deliver for our client.  They needed a tough defense firm to try this case, and we gladly obliged. 

Super Lawyers has named eight attorneys at Demler Armstrong to its 2026 lists of top practitioners in California. The Demler Armstrong attorneys who have been recognized as Super Lawyers include Robert Armstrong, John Brydon, Bjorn Green, James Lemieux, Eric Brenneman, Brian Buddell, Paul Peters, and Edward Tugade.

Super Lawyers represent the top five percent of all practicing lawyers in each state. The publishers of Super Lawyers identify preeminent attorneys based on surveys and interviews with thousands of attorneys, plus consideration of civic service and pro bono activities.

We are thrilled to share that the Association of Defense Counsel of Northern California and Nevada (ADC) voted and unanimously selected Demler Armstrong Partner George Otstott to join its Board of Directors.  His leadership transition was confirmed during the 2025 ADC Annual Meeting held in San Francisco on December 11, 2025.  The ADC consists of over 700 members devoted exclusively to representing the interests of attorneys engaged in the defense of civil litigation.  We’re proud to now have multiple ADC members representing clients at our firm. 

Congratulations, George – your commitment to justice continue to elevate both our firm and the broader legal community. 

Congratulations to Demler Armstrong Partner Ed Tugade on his appointment as DRI | Association of Lawyers Defending Business’s California State Representative.  In this role, he will help advance DRI’s mission by developing short- and long-term goals aimed at strengthening the skills, professionalism, and leadership of its members and defense lawyers across the industry.

DRI | Association of Lawyers Defending Business is the largest organization of defense attorneys and in-house counsel in the country.  We are proud to see Ed represent Demler Armstrong on the national stage!

We are proud sponsors of the 2025 ADC Toxic Torts Seminar, chaired by our Partner Edward Tugade. This premier event brings together top defense trial attorneys and industry experts to share insights on the most effective strategies and approaches to advance our clients’ needs.

In the matter of Guevara v. Sarem, a mother purchased a car for her adult son after he was released from prison serving time for a felony attempted-murder conviction.  She kept title to the vehicle in her own name but it was, for all intents and purposes, her son’s car, which was garaged at his own home.  He was involved in a serious accident and fled the scene.  The injured plaintiff sued both the mother and son, the latter who could not be found.  The complaint alleged against the mother, in addition to owner’s statutory liability, vicarious liability, negligent entrustment, ownership, management and maintenance of the vehicle.  On behalf of the mother, Demler Armstrong filed a motion for summary adjudication on all theories except owner’s statutory liability (which is subject to the $15,000 per person limit).  The mother argued that there was no evidence that her son was acting as her agent, that she was aware that her son was incompetent to drive, that she operated or controlled the vehicle, or that the car was negligently maintained or that any defect in the vehicle was a proximate cause of the accident.  Plaintiff opposed the motion with evidence that over ten years before the accident, the son had been arrested and/or convicted for DUI and reckless driving.  Nonetheless, the court granted the motion for summary adjudication finding that there was no competent evidence that the mother knew, or should have known of these prior driving violations and that plaintiff had not opposed summary adjudication on the remaining theories of liability.

Following a long list of nominations and a rigorous selection process, the Association of Southern California Defense Counsel selected John Brydon as one of three finalists for Defense Win of the Year for his remarkable work in Watts v. Pneumo Abex (2024 1st Dist. Div. 2) 106 Cal.App.5th 248. John’s relentless efforts to secure favorable factual findings from the trial court in the first instance provided the foundation needed for the tremendous appellate work by Emily V. Cuatto and Curt Cutting of Horovitz & Levy. This recognition by the ASCDC highlights John’s exceptional dedication and expertise in defense law and showcases the most impactful victories that shape the legal landscape of what defense attorneys do. Please join us in celebrating this outstanding achievement!

Please join us in congratulating and welcoming our newest partners, Margaret Lesniak and James V. Weixel. Given their extraordinary legal expertise and proven track records, they exemplify our dedication to meeting our clients’ needs and delivering exceptional results. We are honored to celebrate our new partners and look forward to their continued success in the legal field and contributing their extraordinary dedication and accomplishments to our firm’s success. Learn more about our newly elevated partners at Our Attorneys

Congratulations to Partner Edward P. Tugade for his successful and impactful leadership as President of the Association of Defense Counsel of Northern California and Nevada. Indeed, his service to the ADC is exemplary and in keeping with the highest standards of our legal profession. 

We were once again a proud sponsor of the ADC’s 65th Annual Meeting, where Ed was recognized for the great year as its President.

Jim Weixel, of Demler’s Sacramento and San Francisco offices, recently helped secure publication of the Court of Appeal’s opinion in San Antonio Regional Hospital v. Superior Court (Musharbash), No. E082481 (4^th Dist., Div. 2). A member of the Amicus Committee of the Association of Defense Counsel of Northern California and Nevada (“ADCNCN”), Weixel co-authored a letter requesting publication of the opinion with ADCNCN’s counterpart, the Association of Southern California Defense Counsel (“ASCDC”).

In Musharbash, the plaintiff submitted a declaration from a surgical nurse to oppose the hospital’s motion for summary judgment. The hospital had argued that physicians did not breach the standard of care in assessing and responding to a patient’s traumatic brain injury which later led to his death. The Court of Appeal held that the plaintiff had failed to establish that the nurse was qualified to render an opinion on the standard of care applicable to TBI surgical responses or whether the hospital had breached it. Accordingly, the Court of Appeal reversed the trial court and ordered it to grant summary judgment.

The ADCNCN and ASCDC requested publication because the case explained the standards for admitting expert opinion testimony in the context of summary judgment, and to counter a recent trend in which the plaintiff’s bar offers declarations from witnesses whose expertise is often questionable or otherwise insufficient in highly technical areas such as medical malpractice. The publication of the Musharbash opinion can be expected to lend greater clarity on this issue to the trial courts and counsel.

The Court of Appeal’s opinion (not yet marked for publication) can be found here.

Is your Expert Admissible? Updates to Federal Rules of Evidence 702

Thursday, May 23, 202412:00 PM PDT/1:00 PM MDT/2:00 PM CDT/3:00 PM EDT

Changes to the federal rules of evidence, even in the slightest, can yield big changes to how you prepare for litigation. Join Demler Armstrong Partner Michele Barnes and Professor Cliff Hutchinson to discuss latest amendments to FRE 702 regarding admissibility of expert testimony.  Come learn about how these changes will affect the admissibility of your expert or expert testimony and your trials in the future

 REGISTER NOW! 

Panelists

Cliff Hutchinson

Cliff Hutchinson is a litigation attorney with over 38 years experience in litigating complex, high-stakes commercial and personal injury cases. Mr. Hutchinson focuses on cases involving scientific and technical evidentiary issues, ranging from questions of economic loss in commercial damages claims to epidemiological analyses in toxic tort cases. Mr. Hutchinson has represented clients in state and federal trial or appellate courts in twenty states and before the United States Supreme Court.

Michele Barnes

Michele Barnes, of Demler, Armstrong & Rowland, LLP, is a seasoned litigator who has tried scores of cases throughout the West Coast and routinely argued before the California and Ninth Circuit Courts of Appeal. Ms. Barnes’ practice focuses on representing industrial and consumer product manufacturers. Ms. Barnes serves as National Coordinating Counsel for several clients overseeing tort litigation claims throughout the country. She regularly works with clients to evaluate risk management practices, review marketing and use materials, and provide guidance on a variety of regulatory issues, including CPSC, FTCA and Proposition 65. Ms. Barnes has been a regular contributor and editor to PLIs Expert Witness Handbook since 2009, including chapters on the admissibility of testimony, expert disqualification, and emerging issues related to fire causation.

 REGISTER NOW! 

Questions?

Contact Katie Bundyra at kbundyra@primerus.com or 1.616.454.9939.

International Society Of Primerus Law Firms™ 1-800-968-2211   |   www.primerus.com

Demler, Armstrong & Rowland partner Edward Tugade was interviewed by the Daily Journal about his experience from fighting in the trenches of war during his service in the U.S, Marines to the battleground of the courts, and ultimately his election to the ADC’s presidency. 

Read the full article here

Demler Armstrong proudly came out in full force to attend and support this year’s Annual Meeting of the Association of Defense Counsel (https://www.adcnc.org/) and to celebrate Partner Edward Tugade’s induction into to the ADC’s presidency.

On November 27, 2023, a three-justice panel of the First Appellate District affirmed the San Francisco Superior Court’s order granting summary judgment for Fire Insurance Exchange (“FIE”) in a first-party bad-faith action. The insured had asserted claims for breach of two insurance contracts and bad-faith denial of policy benefits on a first-party water loss in a four-unit apartment building she owned. The Superior Court granted summary judgment for FIE on grounds that the insured failed to submit to an examination under oath (“EUO”) on request. On appeal, the panel unanimously affirmed, rejecting the insured’s arguments that issues of facts existed as to whether (1) the EUO requests were unreasonable and made in bad faith, (2) FIE was estopped from raising, or waived, the EUO condition, and (3) the insured never refused to submit to the EUO. The court of appeal observed that there were unanswered questions necessary to determine whether coverage existed and the extent of the loss, and therefore it was reasonable to request an EUO to explore these matters. The court further refused to consider the estoppel and waiver arguments as they were not raised in the trial court below Finally, the court held that the new contention on appeal – that the insured did not refuse to submit to an EUO – was directly contradicted by her position in the lower court during summary judgment. The Court of Appeal also affirmed the Superior Court’s denial of the insured’s request for reconsideration of an order refusing to reopen discovery, pointing out that the reconsideration request was untimely, and in any event, the denial of the motion to reopen discovery was within the trial court’s discretion as the insured had ample time to conduct discovery but had not been diligent in pursuing it. Finally, the court of appeal upheld the trial court’s imposition of issue sanctions dismissing the insured’s claim for punitive damages, holding that, since summary judgment was proper, the issue of punitive damages became moot.

The case was handled at both the trial and appellate level by Randy A. Moss and Lisa L. Pan. Snyder v. Fire Insurance Exchange, First Dist. Ct. Appeal Case #A165392.

Demler, Armstrong & Rowland takes great pride in announcing that on December 7, 2023, Partner Ed Tugade will take office as the 65th president of the Association of Defense Counsel of Northern California and Nevada (ADC). As the ADC’s President, Ed will work with the Officers and Directors of the ADC Board and the ADC membership at large, which includes more than 700 members throughout Northern California and Nevada, to further the ADC’s mission to provide for the exchange of information, to promote the administration of justice, and to enhance the standards of civil defense practice.

Ed has been actively involved with the ADC since joining the firm in 2015 and has served with distinction on the Board of Directors and as a chair of the ADC’s Toxic Torts Committee, Annual Meeting Committee, and Bench Bar Committee. Ed is also a regular contributor of articles to the ADC’s magazine, Defense Comment.

A San Francisco native, Ed did not take the conventional road, entering the legal profession as a highly decorated combat veteran. Ed earned an honorable discharge from the United States Marine Corps in 2002 after serving over a decade of active-duty service in infantry and joint special operations units. His military career includes experience as a combat platoon leader of Marines during the Gulf War, a team leader in operations off the coast of Beirut, Lebanon, a Drill Instructor focused on the training and making of Marines, and a staff supervisor in the office of the Judge Advocate General.

He earned his bachelor’s degree from The College of William & Mary in Colonial Williamsburg, Virginia, and his law degree from the University of California College of the Law, San Francisco (formerly UC Hastings College of the Law).

Ed is also a member of the California Defense Counsel, the Defense Research Institute (DRI), Primerus, the Marine Corps Association, and the Veterans of Foreign Wars.

Our congratulations to Ed and to the ADC on its outstanding and well-deserved choice.

We are pleased to announce that after a five-week trial, a Van Nuys jury returned a complete defense verdict in favor of our client, a wholesale plumbing supplier, tried by Demler, Armstrong & Rowland (“DAR”) partners Brian H. Buddell and Jennifer C. Rasmussen.

Asking the jury to award over $100 Million, Plaintiffs Kirtley Bjoin and his wife Allison Bjoin, claimed that Kirtley Bjoin, a 62-year-old non-smoker with Stage IV lung cancer, was exposed to asbestos from his work with and around underground asbestos cement pipe supplied by DAR’s client from the 1970s through the 1990s, in this asbestos products liability action filed by Weitz & Luxenburg. 

Proceeding under both negligence and strict liability causes of action, plaintiff alleged that: a) The product did not perform as safely as an ordinary consumer of asbestos cement pipe would expect; b) Defendants failed to warn about the dangers of the product; and c) The risks posed by the asbestos found in the pipe outweighed the benefits of the product. 

Our trial team countered that: a) The product was safe if used properly; b) If the asbestos contributed to cause plaintiff’s disease, it was his actions and not those of the supplier that represented a substantial factor; c) Plaintiff, as an experienced pipe layer was a “sophisticated user;” and d) Because there was no viable alternative at the time (due in part because asbestos cement pipe was utilized by the municipalities entities for whom plaintiff was installing it), the benefits did outweigh the risks.

After only 3½ hours of deliberations, the jury agreed with the defense, finding that it was plaintiff’s misuse of the product that created any hazard and that the actions of the supplier did not constitute a substantial factor in increasing plaintiff’s risk of developing lung cancer.  All jurors spoken to were also highly complementary of the style, organization, and presentation of the DAR trial team.

Stated Jennifer Rasmussen of the verdict, “We are so pleased that the jury hung in there and listened to the entire case, giving our client an opportunity to present what we knew from the outset, to be a strong and viable defense. We hope too that this defense verdict shows that well-thought out and streamlined defenses can be successful, and that juries are willing to hear both sides of the arguments. We are also so appreciative of Judge Graciela Frexies for her fair and thoughtful handling of this complicated case.”

The firm recently supported a golf benefit for VFW Post 4647 in Antelope, California. Jim Weixel from the firm’s Sacramento office participated in the outing, which was well attended by members of the post and from the local community. Many thanks to the VFW for a great day out and for the opportunity to support its many important activities for the benefit of our veterans.

Marking a victory for DAR by partner Pennie Liu and associate Kelly Kim, they obtained summary judgment in a dog bite/premises liability case in favor of our landlord clients who rented out a single-family home in El Monte.  Unbeknownst to the landlords, the tenant’s pitbull had violently killed another dog years before it attacked the plaintiff.  Plaintiff argued that this previous incident, as well as a handwritten provision in the lease agreement approving tenant’s “two pet dogs” was evidence that the landlords had actual knowledge of the dog’s propensities and that they should have realized the dog’s violent propensities.   The defendants argued that they did not have actual knowledge of the dog’s dangerous propensities because they were unaware of the prior incident. 

After extensive oral argument at the hearing, plaintiff convinced the Court to allow supplemental briefing on the issue of the landlords’ alleged failure to conduct routine inspections of the property, arguing that, had they done such inspections, they would have seen the dangerous pitbull on site, bark and growl at visitors.  Based on the supplemental briefing, the Court granted summary judgment, concluding that one cannot assume a dog is dangerous based solely on its breed and growls/barking.

On April 11, 2023, Partner John Brydon will be speaking with Alexandra S. Fernandez and Guy Kornblum as the moderator on the best approach to taking the depositions of key witnesses. Click here for details and to register: Display event – Taking “Killer” Depositions of Key Witnesses (sfbar.org)

Partners John Brydon and Brian Buddell will be among esteemed high-profile speakers at the ADC Annual Meeting at the historic St. Francis Hotel in San Francisco on Union Square on December 8-9, 2022.  John Brydon, along with industry leaders, will address Successful Jury Trial Strategies in the Age of Nuclear Verdicts.  Brian Buddell will join a blockbuster panel on Successful Tactics for Voir Dire:  Learn How to Pick ‘Em.  Click here for more details, including the schedule, program, and to REGISTER NOW:   https://www.adcnc.org/annual-meeting

Please join Demler Armstrong & Rowland, LLP partner Edward P. Tugade at the upcoming virtual and complimentary conference, Asbestos Litigation Trends and Trial Overview, on June 22. Hosted by Perrin Conferences, the event speakers include prominent attorneys, insurance professionals, and industry experts.

To view the agenda and register for this complimentary conference please go to: https://lnkd.in/g3uJrA9Y

Randy Moss and Lisa Pan score another victory for DAR clients on dispositive motion, this time in an insurance bad-faith action alleging wrongful failure to defend and indemnify.

The insurer client’s insured was involved in a physical altercation when he found his estranged wife at a restaurant with another man (Plaintiff in the underlying action). During the fight, the Plaintiff sustained a broken jaw.

The DA investigated but declined to file criminal charges because it had insufficient evidence as to who started the fight.  The Plaintiff filed civil suit against the insured, who claimed he acted in self defense, and that Plaintiff broke his jaw, not when the insured intentionally punched him in the face (in self defense), but in the subsequent struggle in which both fell to the ground, striking the pavement hard.  The insured tendered his defense to the insurer who, after investigating (including taking the insured’s recorded statement), declined to defend.  In his statement the insured claimed he did not intend to injure the Plaintiff but admitted that he did intend to take Plaintiff down to the ground during their struggle.  The insured continued his defense through personally-retained counsel. Shortly before trial of the underlying civil suit, the parties stipulated to entry of Judgment against the insured in favor of Plaintiff for policy limits of $300,000 and an assignment of the insured’s rights against the insurer, in exchange for a covenant not to execute against the insured personally.  Thereafter, the Plaintiff filed suit against the carrier alleging assigned causes of action for breach of contract and the implied covenant of good faith and fair dealing, and a direct statutory cause of action against the insurer on the judgment.

Plaintiff assignee sought damages for defense costs, the $300,000 judgment and  other damages purportedly suffered by both him and the insured as a result of the carrier’s denial of defense. After persuading the Plaintiff to dismiss the bad-faith action, DAR filed summary judgment on the remaining claims, contending that there was no potential for coverage because the Plaintiff’s injuries did not arise out of an “occurrence” (i.e., accident). 

DAR argued that, even if the insured acted in self defense, and questions of fact existed as to whether plaintiff’s injuries were the result of being punched in the face or when the parties fell to the pavement, and even if the insured denied intending to cause injury, the insured’s act were intentional and therefore not accidental.  The Superior Court, County of Sonoma agreed, noting that there was no evidence that the Plaintiff was injured as a result of an involuntary reflexive act on the insured’s part.  Rather, Plaintiff’s injury was the result of intentional conduct (though the resulting injury was  not intended) and therefore not accidental.

The court granted the motion in its entirety.

Case: Dominic Capito v. Mid-Century Insurance Company (Sonoma County Superior Court)

We would like to congratulate Amber Kelly as a new member of the�American Board of Trial Advocates (ABOTA). On August 7, 2021, she was voted into ABOTA �a prestigious, invitation-only organization of plaintiff and defense lawyers in which prospective members are strictly screened for high personal character, an honorable reputation and for having tried a significant number of jury trials to verdict.

Congratulations to Paul Bessette and Lisa Pan on another MSJ victory. In�Whiting v, Buxton, Alameda County Superior Court, an�on-duty Alameda County firefighter sued�for personal injuries against the owners of rental property. The plaintiff was responding to a fire on the property. ACFD rescued numerous dogs owned by the tenants on the premises and escorted one of them across the street, entrusting it to the care of the tenant’s minor daughter. While the plaintiff was attempting to question the minor, the dog lunged at him causing severe facial injuries. Plaintiff firefighter sued the landlords of the premises alleging that the fire was caused by electrical defects in the premises and for the injuries caused by the dog. His wife joined asserting a claim for loss of consortium. The County served notice of lien in the amount of $326,000. Defendant landlords prevailed on motion to strike the allegations regarding the alleged electrical defects/cause of the fire based upon the firefighter’s rule. Thereafter, they filed a motion for summary judgment on the ground that they had no notice that the tenants harbored a dangerous dog on the premises. Following discovery, including depositions of the landlord and his assistant, Plaintiffs agreed to dismiss the action with prejudice and for a waiver of costs�

Demler Armstrong & Rowland is pleased to announce that its San Francisco Managing Partner, John R. Brydon, was lead trial counsel for Pneumo Abex, LLC, a former manufacturer of asbestos containing brake linings, and obtained a 12-0 defense verdict in a disputed mesothelioma wrongful death case in Pierce County Superior Court, Tacoma, Washington.  Abex was the last remaining defendant in a case brought by the heirs of 88-year-old Donald Winslow who claimed exposure to Abex brake linings from the blow out of old brake drums while he was the owner and occasional mechanic at an Atlantic Richfield gas station in Port Orchard, Washington from 1967-1980. Mr. Winslow also spent over a dozen years as a sheet metal worker at the Puget Sound Naval Shipyard in Bremerton, Washington in the 1950 and early 1960s. The case was tried under the former Washington products liability common law rules, which imposes joint & several liability for full damages against any remaining defendant less any post-judgment offsets from prior settlements.  Plaintiffs asked the jury to award $7 million and after one juror was discharged for work related reasons during the initial deliberations, the jury restarted deliberations with the alternate and returned a 12-0 defense verdict in under 2 hours.

Mr. Winslow had been initially diagnosed with “probable” pleural mesothelioma by his treating physicians, but no biopsy of the tumor was done while he was alive.  Mr. Winslow’s son commissioned an autopsy and had the pathology slides reviewed by pathologist/pulmonologist Richard Kradin, a frequently used plaintiff expert who agreed with the diagnosis but did not review the autopsy photos or conduct his own testing. Dr. Kradin concluded that the tumor was a sarcomatoid mesothelioma.

Pathology material was obtained by the defense and sent to Lucien Chirieac, MD, a pathologist who has written extensively on guidelines for this difficult to diagnose disease and after conducting his own testing of the tumor and viewing hundreds of photos taken at autopsy testified that this was not a mesothelioma.  It did not present like mesothelioma, did not behave like a mesothelioma in the way it metastasized and tested negative for mesothelioma.  He concluded that the tumor was a sarcoma, which all the experts agreed is a cancer that is not caused by exposure to asbestos.

The defense also challenged the product identification and exposure claims in the case and argued if there was any release of asbestos during blow out of spent linings that may have been supplied by Abex, it was de minimis and in the unlikely event that this was mesothelioma, the claimed exposures were insignificant and would not be a legal cause of the disease.

The case was tried in person in a socially distanced facility with a live Zoom public feed.  All participants, including the jurors, were required to wear masks except when speaking, examining, or testifying, Plaintiffs’ experts all testified via Zoom and all the defense witnesses were presented live.

TRIAL LENGTH:               

15 Court Days  | Verdict July 6, 2021

PLAINTIFFS COUNSEL:   

Craig Sims, Esq. | Schroeder, Goldmark Bender, Seattle WA

Kaitlin Wright, Esq.  | Schroeder, Goldmark Bender, Seattle WA

DEFENSE COUNSEL:      

John R. Brydon, Esq. | Demler, Armstrong & Rowland LLP, San Francisco, CA

Johan D. Flynn, Esq. | Wheeler Trigg O’Donnell LLP, Denver, CO

Michael E. Ricketts, Esq. | Gordon Thomas Honeywell LLP Seattle, WA

JUDGE:                            

Hon. Michael E. Schwartz, Pierce County Superior Court, State of Washington

CASE:                                

Donald Gail Winslow v. Pneumo Abex. LLC, Case No. 20-2-05066-6        

John Brydon to present a webinar on punitive damages on July 14, 2021, 12:00 p.m. to 1:00 p.m. for the Association of Defense Counsel, “Punitive Damages – Trial Perspective,” where he will share his perspective on countering punitive damages before and during trial. Click here to register

Partner Derek Lim to moderate “The Plaintiff’s Lawyer’s Perspective on the Anatomy of a Truck Crash Case”

Click here for details and to register

Partner John Brydon to speak on Zoom Jury Trials on April 2, 2021. Click here for more information and to register: https://slobar.org/events-calendar/#!event/2021/4/2/cctla-presents-zoom-jury-trials

Edward Tugade has been unanimously elected to the office of Secretary-Treasurer of the Association of Defense Counsel (ADC), an organization consisting of accomplished defense attorneys and corporate counsel.  Ed’s term as Secretary-Treasurer runs through December 2021, after which he will serve as Second Vice-President in 2022, First Vice-President in 2023, and President in 2024.  In addition to his duties as an officer for the ADC over the next several years, Ed will also be actively involved with several other organizations including the Defense Research Institute (DRI) and Primerus.

Ed is extremely honored to receive the support of the ADC community and is looking forward to taking on the role of Secretary-Treasurer.  The firm congratulates Ed on reaching this milestone with the Association of Defense Counsel.

Eric Brenneman of DAR’s Sacramento office will be presenting on a national panel of insurance coverage attorneys discussing “Coverage and Litigation in a COVID-19 World,” hosted by the Primerus Defense Institute.  The panel will discuss recent updates in scientific and medical literature concerning the SARS-CoV-2 virus and the COVID-19 disease, the status of first-party business interruption litigation arising from “stay-at-home” orders, and updates on coronavirus coverage legislation.  Mr. Brenneman will also be discussing and leading an interactive break out session on third party liability and coverage issues arising from the novel coronavirus pandemic.

Click here for more information and to register for the webinar.

San Francisco Managing Partner, John Brydon, will be one of two esteemed presenters on the hot topic of today. Please click here for more information and to register.

Jim Weixel of DAR’s San Francisco office recently scored a reversal of a summary judgment entered against the firm’s clients, two homeowners who had lost their home in a landslide.  One defendant, a church located across a stream from the clients’ back property line, moved for summary judgment based on the conclusion of the church’s experts that water runoff from its property could not have been a substantial factor in causing the land movement on the clients’ property.  Weixel and the clients’ personal counsel sought a continuance of the motion to conduct a site inspection and water testing on the church’s property, but the trial court refused, and subsequently granted summary judgment.

In a published decision, the Court of Appeal reversed.  The court held that Weixel’s declaration in support of the continuance met the requirements of CCP 437c(h) “to the letter,” as it laid out precisely what discovery was being sought and why it was needed to oppose the motion.  The declaration also established that there was no urgency to the hearing, as there was no trial date or other impending deadlines at the time.  Under those circumstances, the court held, it was an abuse of discretion for the trial court to deny the request for continuance.

The decision is notable not only as a win for the clients, but also because it reconciles a somewhat inconsistent body of case law regarding the rare circumstances under which continuances can ever be denied under 437c(h  Under the reasoning used by the Court of Appeal, a continuance is “virtually mandated” if the party opposing summary judgment is able to support its request for a continuance with the sort of declaration Weixel submitted here.  The decision gave very clear directions about the subdivision’s requirements, which should prove helpful to litigants seeking additional time to conduct discovery in opposition to motions for summary judgment.

The case is Insalaco v. Hope Lutheran Church of W. Contra Costa County, No. A156562, and the decision is available here.

Partner Edward�Tugade�will host another webinar on May 13, 2020. The COVID-19 pandemic has caused substantial upheaval at every level of society, the legal system included. But not all of this disruption will be visible; it is likely that juror attitudes and juror experiences regarding a number of related agencies, industries, and products will be significantly affected. To assess these changes, our presenters have developed and implemented several surveys that measure jurors’ attitudes toward key topics affecting attorneys and litigants, such as: the pharmaceutical industry, government agencies, and large corporate entities. In this webinar, jury consultants break down the findings of these surveys and their potential legal implications. Click here for more information and to register: http://www.adcnc.org/Events.asp#bkmrk374

Jim Weixel, attorney at Demler’s San Francisco office, successfully obtained summary judgment for the firm’s clients in a landlord-tenant dispute arising out of a September 2017 water leak in their Walnut Creek apartment. The clients were on vacation when a shower/tub valve malfunctioned. Hot water flowed unabated from the shower faucet for several days, causing steam and other damage to the clients’ personal belongings and requiring the clients � a young couple with a new baby � to move out. The clients sued their landlord and the landlord filed a cross-complaint, claiming the clients breached a lease provision requiring them to report defects to the landlord. The cross-complaint was assigned to Demler for a defense under the clients’ renters insurance policy.

The clients argued that there was no sign of a leak or other defect in the shower/tub valve before the incident occurred, and thus they could not have known of the defect and could not have been under any contractual duty to report it. The landlord submitted expert declarations which the landlord claimed established that the defect would not have been apparent without a sudden leak or a failure to control the water temperature. The clients responded that neither of those things had occurred before, and pointed out that the experts declarations actually confirmed that the clients would have had no reason to know of the possible defect before the incident. Therefore, they could not have breached the duty to report any known defect to the landlord. The court agreed, and granted summary judgment as to the landlord’s cross-complaint. The court also denied the landlord’s own motion for summary judgment.

The grant of summary judgment not only relieves the clients from the prospect of liability to their landlord, but also opens up the landlord to liability for the clients’ reasonable attorney fees under a lease provision for recovery of fees by the prevailing party. The case is set for trial in November, which will now proceed only on the clients’ claims against the landlord. Those claims are being prosecuted by separate counsel.

Demler, Armstrong & Rowland LLP takes great pleasure to announce that Erin McGahey has joined the firm’s San Francisco office as Of Counsel, bolstering our continued ability to provide our clients with top notch representation and to successfully litigate and try cases on their behalf.  She is a seasoned attorney, specializing in toxic tort litigation with extensive experience in asbestos litigation, products liability and employment litigation. She has represented product manufacturers, contractors, and retailers in all aspects of toxic tort and asbestos litigation, including extensive experience in trial preparation and as trial counsel.  

Erin received her B.A. in Law & Society, with an emphasis in Criminal Justice, from the University of California, Santa Barbara in 1993.  After taking some time for travel in England, she received her J.D. from Benjamin N. Cardozo School of Law in New York City in 1998, and was a member of the Criminal Law Clinic.   Ms. McGahey worked for The Legal Aid Society, Criminal Defense Division, in Manhattan between 1997 and 2002 where she tried several felony and misdemeanor cases.

Erin is admitted to the bar in both California and New York, and is admitted to practice before the United States District Court (Northern District and Central District).  She is a member of the DRI, Association of Defense Counsel of Northern California and Nevada (ADC) and National Cannabis Bar Association.  She served as a Chairperson of the Toxic Tort Sub-Law Committee for the ADC between 2010 and 2016 and organized annual seminars for presentations to its members. She is currently serving as Associate Editor of Defense Comment magazine, published by the ADC of Northern California ans is a contributor to the Past President’s Highlight feature.  She is also the published author of “Unsettled – Inside the Strange World of Asbestos Lawsuits” in the Spring 2018 edition of Defense Comment, and “Is Hernandezcueva A Dog With a Bark Bigger Than Its Bite?” in the Fall 2016 edition of Defense Comment. 

Erin finds time in her busy schedule to actively participate in several charitable organizations dedicated to raising money to find a cure for breast cancer and ALS.

George A. Otstott and Lisa L. Pan of Demler, Armstrong & Rowland, LLP’s San Francisco office won summary judgment using a primary assumption of the risk defense involving a collision between two adult league hockey players on the ice during a game. Plaintiff testified that the collision resulted in multiple bone fractures (six ribs, scapula, sternum, clavicle, shoulder bones), a torn rotator cuff, and collapsed lung.  He filed a lawsuit for negligence, intentional tort and punitive damages.  The entire hockey game was recorded on video, which showed the moments before, during and after the collision, and was attached as an exhibit to the motion and played repeatedly at oral argument.

We argued that Defendant’s conduct leading up to the collision, the collision itself, and Plaintiff’s resulting injuries were not “totally outside the range of ordinary activity involved with the sport.”  As a consequence, whether intentionally or negligently caused, Defendant did not owe a duty to prevent that injury under Avila v. Citrus Cmty. Coll. Dist. (2006) 38 Cal.4th 148, 165 and Knight v. Jewett (1992) 3 Cal.4th 296, 308.  Although officials presiding over the game might impose penalties for Defendant’s conduct, it is not the function of tort law or the civil courts to police such conduct.  Plaintiff’s Opposition argued that the conduct of Defendant was “outside the range of ordinary activity involved in the sport” since the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport, per Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1394.   

The firm is proud to announce that Kathryn Dao has been elevated from Senior Associate to Partner.  After graduating from Michigan State University School of Law in 2010, Kathryn has focused her practice on the defense of cases involving premises liability, habitability issues, products liability, wrongful death, and catastrophic injuries.  Kathryn has spent her entire law career working for our firm. Her attention to detail and client service, as well as her success in the courtroom make her a huge asset to the firm and the firm’s clients, and we congratulate Kathryn on this well-deserved promotion. 

Defense Research Institute (DRI) has featured the article by Edward Tugade and James Weixel on how to exclude hearsay product identification evidence.  Read more here. 

Edward P. Tugade and Kelley T. Mahoney of Demler, Armstrong & Rowland, LLP’s San Francisco office successfully secured an outright dismissal of their client, a small, family-owned manufacturer and distributor of wood products based out of Wisconsin, who had been sued in a Proposition 65 enforcement action in California. Plaintiff alleged their client had failed to provide adequate warnings to California consumers related to “wood dust” contained in one of its products, pursuant to California Health & Safety Code section 25249.6.  Under California Health & Safety Code section 25249.7, a private citizen may bring an action in the “public interest” to enjoin the distribution of a product in California that does not contain adequate warnings regarding certain chemicals, including “wood dust,” listed on the Proposition 65 list.  If an entity is found to have violated California Health & Safety Code section 25249.6, it may be subject to civil penalties of up to $2,500 a day for each violation, in addition to Plaintiff’s attorneys’ fees and costs for the suit. 

The defense successfully argued that their client, a Wisconsin corporation whose business operations are limited exclusively to the Midwest, is not subject to personal jurisdiction in California, as it has never been registered or qualified to do business in California, has never owned, operated, leased, maintained, or otherwise possessed, occupied, or controlled any offices, manufacturing facilities, or distribution operations in California, has no employees or agents in California, has never advertised or marketed its products in California or to potential customers in California, and has never manufactured, sold, supplied, shipped, or distributed its products in, into, or through California.  Further, Defendant pointed out, absent any deliberate, purposeful, or voluntary act of her client directed to California or a resident of California, the mere fact that Defendant’s product may have ultimately ended up in California was insufficient to subject it to personal jurisdiction in California.  Ultimately, Plaintiff agreed and dismissed the Wisconsin based Defendant. 

John Brydon, managing partner of our San Francisco office, will be speaking on the impact of artificial intelligence on the practice of law along with Hugh McCabe of the San Diego law firm Neil Dymott. Click here for more details.

Edward Tugade and James Weixel published in the Spring 2019 magazine of ADC, Defense Comment. Click here to read.

Demler Armstrong & Rowland, LLP is looking forward to hosting the ADC Toxic Torts Series at its office in San Francisco on April 19 and 26, 2019. Click here for more details and to register.

Demler Armstrong Partner Derek Lim spoke at the ABA Transportation Megaconference ?on March 22, 2019? in New Orleans. The panel discussed various hot topics including? ?proving and controlling damages in a case.

The firm recently added two highly experienced commercial litigation lawyers to its Northern California office. Former Archer Norris partner Derek Lim and associate Shannon Mallory have brought their growing litigation practice that focuses on transportation, employment, construction and business law. Derek, who joins the firm as a partner, is a seasoned litigator and has been recognized as a Northern California Super Lawyer for several years. He is a Vice Chair of the American Bar Association’s Commercial Transportation Litigation Committee and a member of the Transportation Industry Defense Association (TIDA). He has represented small businesses to Fortune 500 companies in all aspects of litigation in state and federal courts. Shannon is a skilled advocate and utilizes a client-centered approach in litigating her cases. Derek and Shannon have successfully teamed up to defend their clients in high stakes cases involving complex legal issues and catastrophic injury claims.

Demler has also expanded its Sacramento presence by adding former Farmer Smith & Lane attorney, Eric Brenneman, who handles a wide variety of tort, insurance, contract and construction defect litigation in both state and federal courts. He also advises commercial carriers and Joint Powers Authorities on coverage issues and assists insurers in conducting first-party fraud investigations, including administering examinations under oath. He has represented commercial clients, policy holders and individuals in courts across California and as�pro hac vice�counsel in other jurisdictions. Eric joins Steve Block in our Sacramento office.

The firm is proud to announce that Pennie Liu Gable has been elevated from Senior Associate to Partner. Since graduating from law school with honors in 2006, Pennie has focused her practice on the defense of cases involving catastrophic injury claims, premises liability, products liability, defamation and invasion of privacy. Her work ethic and attention to detail make her a huge asset to the firm and our clients, and we congratulate Pennie on this well-deserved promotion.

On April 20, 2018, Northern California Managing Partner John R. Brydon was a featured speaker at the Litigation Counsel of America’s 13^th Renaissance Symposium on the topic of “20^th Century Trial Lawyer Challenges With 21^st Century Juries � A Defense Trial Lawyer’s Perspective”. The Symposium, being held in San Francisco, is a gathering of members of the LCA, which includes in its membership some of the top trial lawyers in the United States. John is a Senior Fellow of LCA and his topic will include discussion of generational differences between trial lawyers and juries, the use of technology in the courtroom, universal case themes, effective communication, professionalism and civility in the courtroom. The Litigation Counsel America is an invitation-only trial lawyer honorary society established to reflect the new face of the American bar. Membership is limited to 3,500 Fellows, representing less than one-half of one percent of American lawyers. http://www.litcounsel.org/about/overview/

Demler, Armstrong & Rowland hosted the Association of Defense Counsel of Northern California & Nevada’s 2018 Toxic Tort Seminar (registration) at its new San Francisco Office on�May 11 and May 18, 2018. San Francisco Partner Ed Tugade spoke on the impact of recent troublesome appellate decisions and defending cases in their aftermath. Other topics included updates in legislative efforts affecting toxic tort defense, cutting edge medical defenses and the impact of recent case developments on expert witnesses. The firm was pleased to be able to host that years’ program. A link to the program registration and information is here:

https://www.regonline.com/registration/Checkin.aspx?EventID=2270532

Our Northern California presence has now expanded to 15 attorneys and is moving its office to 601 California Street effective April 1, 2018. The firm has also opened an office in Sacramento, led by partner Steven A. Block, and Jennifer Rasmussen has joined its San Francisco office as a partner.

With the additions of Block and Rasmussen, the firm has expanded to 15 attorneys over the past three years in the Northern part of the state. Other attorneys joining the San Francisco office within the past six months include George Otstott, a 20 year veteran defense lawyer and former litigation partner at the Buty & Curliano and Dehay & Elliston law firms; Brian Buddell, a partner and trial lawyer from Pond North; Amber Kelly, a seasoned litigator formerly at Hugo Parker, LLP; and Rochelle Ileto, an associate formerly with Pond North.

With nearly 40 years of experience as a trial attorney, Block joins the firm from the Bureau of Medi-Cal Fraud and Elder Abuse of the California Department of Justice where he served as a civil prosecutor for several years. He has handled a variety of complex litigation matters, including personal injury, medical malpractice, employment, products liability, construction defect, and residential and commercial real estate. He has served as lead counsel on numerous jury trials and has worked as a private mediator and arbitrator in the Sacramento region. Block is a member of the American Board of Trial Advocates and has lectured at several law schools, including Stanford University School of Law. He earned his J.D., with distinction, from�McGeorge School of Law (1978) and his B.A. from the University of California, Davis (1975).

Rasmussen most recently served as the managing partner of Pond North LLP’s San Francisco office. She has more than 20 years of experience in all facets of civil litigation, with a notable background defending companies in toxic tort and asbestos litigation. She handles all aspects of litigation, including initial pleadings, investigation and discovery, trial preparation, trial and appeals. Rasmussen is a member of Association of Defense Counsel of Northern California. She earned her J.D. from Pepperdine University School of Law (1997), where she served on the Moot Court Board, and her B.A. from the University of California, Los Angeles (1993).

New partners Steven Block and Brian Buddell have joined the firm as seasoned trial lawyers and are members in the prestigious American Board of Trial Advocates (ABOTA). Steve is heading up the firm’s newly opened Sacramento Office, where he has been practicing for nearly 40 years as an active trial lawyer and later as a mediator. Brian was a former partner with San Francisco’s Managing Partner John Brydon at his former firm, Brydon Hugo & Parker, which they left in 2014. Before rejoining Brydon, Brian was a Partner and trial attorney at Pond North. The addition of Block & Buddell means the firm now has�5 ABOTA lawyers. Founding partner Robert Armstrong is a member of the Southern California Chapter. Long Beach partner Terry Rowland and Brydon both hold the organization’s highest rank of Diplomate, a rarity in any law firm. In the last few years, the firm’s trial attorneys have obtained defense verdicts in an insurance bad faith trial; a wrongful eviction case based on alleged religious discrimination; a wrongful death products liability cancer case; and multiple verdicts in personal injury cases where the awards have been substantially less than our statutory offers to compromise.

Our two year old San Francisco office has recently relocated and added two seasoned lawyers, expanding the office to 11 attorneys. Effective March 1, 2017 our new San Francisco address is 575 Market Street, Suite 2080. Added to the firm’s diverse team of experienced litigators and trial attorneys, is James Weixel, a veteran litigator of over 25 years, who has represented clients ranging from individuals and families to large multinational corporations at all levels of trial proceedings, in widely diverse fields of practice ranging from personal injury cases, commercial litigation, asbestos litigation, securities litigation and arbitration. Margaret Lesniak also recently joined the firm bringing over 15 years of experience in such fields as insurance bad faith litigation; personal injury; landlord/tenant; defense of public entities and their employees in civil litigation;�ADA�claims; employment and housing discrimination claims, boundary disputes, negligence actions and intentional torts.�The San Francisco office continues to grow and providing the same quality services our clients have come to know since the firm’s inception in Long Beach over 35 years ago.