John J. Machado
Patricia Melugin Cousins
Scott L. Johnson
Nicole M. Edington
Troy Kevin Spears
The Law Offices Of
MACHADO & COUSINS
1500 J Street, Second Floor
Modesto, California 95354-1123
  

Telephone
(209) 578-4341

Facsimile
(209) 578-4366

BY FACSIMILE TRANSMISSION AND FIRST CLASS MAIL


 


Friday, October 2, 1998

DEFENSE ATTORNEY

Re: PLAINTIFF v. LANDLORD OIL COMPANY

Dear Mr. DEFENSE ATTORNEY:

Plaintiffs are in receipt of your letter dated September 21, 1998, and are quite surprised by your request to dismiss your client(s) so early in the discovery phase of this litigation. Plaintiffs are also quite surprised by many of your arguments in favor of so doing.

It must be noted that Code of Civil Procedure Section 128.5 would apply equally well to a premature and/or inappropriate Motion for Summary Judgment. That Section provides in pertinent part:

(a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. . . .

(b) For purposes of this section:

(1) "Actions or tactics" include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. The mere filing of a complaint without service thereof on an opposing party does not constitute "actions or tactics" for purposes of this section.

(2) "Frivolous" means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party. . . .

In your letter, you state that plaintiffs' evidentiary bases are insufficient to establish a claim that the puddle in which PLAINTIFF slipped was the result of faulty equipment. In so saying, you seem to understand that your client(s) were responsible for the repair and inspection of this equipment under the terms of the lease. However, you also note that "it is equally likely that the petroleum product on the ground came from a dripping oil pan or a customer overfilled gas tank." Plaintiffs do not agree with your estimate of equal likelihood, given the size and location of the puddle -- but this is precisely the sort of question of fact that should be decided by a jury. This sort of question is not a question of law, and therefore, is not amenable to a Motion for Summary Judgment.

As to the element of notice, you and your client(s) should carefully consider that a new lease was executed just 10 days before PLAINTIFF was injured. This, coupled with the lease's express terms reserving your client(s)' right of re-entry and inspection, should have put your client(s) on notice as to the potential hazard. This indicates that LANDLORD OIL COMPANY should have known of the potential hazard; further discovery will be designed to ferret out to what degree LANDLORD OIL COMPANY had actual knowledge of this hazard.

Such actual knowledge, when proved, will lend itself to the factual determination of malice or oppression. As pertinent portions of BAJI 14.71 instruct:

You [the jury] may in your discretion award [punitive] damages, if, but only if, you find by clear and convincing evidence that said defendant was guilty of oppression, fraud, or malice in the conduct on which you base your finding of liability.

"Malice" means conduct . . . which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others. A person acts with conscious disregard of the rights or safety of others when he [or] she is aware of the probable dangerous consequences of his [or] her conduct and willfully and deliberately fails to avoid those consequences.

* * *

In arriving at any award of punitive damages, you are to consider the following:

(1) The reprehensibility of the conduct of the defendant.

That said, the appropriateness of a prayer for punitive damages cannot fairly be discussed until the extent of actual knowledge and conscious disregard of others' safety has been explored. Moreover, such evidence will also be decisive as to the reprehensibility of your client(s)' conduct.

If, indeed, complete and forthright responses to our discovery indicate that LANDLORD OIL COMPANY had no actual, implied, or constructive knowledge of the potential hazard, the question of voluntarily dismissing your client(s) will then be ripe for determination. Until that time, please, respond fully and forthrightly to all of our discovery requests.

Thank you in advance for your cooperation, and I look forward to hearing from you soon.

With our regards,
MACHADO & COUSINS
 
 

Troy Kevin Spears
Attorneys for Plaintiffs