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New Cases of Interest - July 21, 2015
Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546. In this case a gym customer suffered a substantial head injury when she fell off of a treadmill. She had signed a release when she joined the gym, but contended that the release was obtained by fraud and misrepresentation, and that in addition the gym was grossly negligent by placing the treadmill less than four feet behind other equipment. The court held that the customer presented a triable issue of fact as to whether the gym was grossly negligent which would make the release unenforceable. There was evidence provided that the standard practice in the industry was to provide a minimum six-foot safety zone between treadmills and in addition a triable issue of fact as to whether the release was obtained by fraud and misrepresentation when the membership manager ostensibly made nonverbal gestures indicating that plaintiff was signing a document that related only to being allowed to exercise if she paid the price on the computer screen rather than including a release of liability.
Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631. A hospital sought summary judgment on the basis that the emergency room physician who failed to diagnose and treat defendant's brain hemorrhage was not an ostensible agent of the hospital but an independent contractor. The court found that the admissions form signed by the patient upon entering the emergency room was not sufficient to conclusively indicate that the patient being admitted should have known that the emergency room physician was not an agent of hospital, and the fact that there were posted signs and insignia on the doctor's clothing in addition did not sufficiently disclaim any ostensible agency.
Monterossa v. Superior Court (2015) 237 Cal.App.4th 747. The borrower sought and obtained a preliminary injunction against a trustee's sale for nonjudicial foreclosure and then sought attorney's fees and costs. The court allowed such relief under Civil Code § 2924.12(i) determining that the reference in that statute to "injunctive relief" incorporated both preliminary and permanent injunctive relief and a borrower who had obtained a preliminary injunction had prevailed in obtaining injunctive relief and was entitled to attorney's fees and costs.
Womack v. Lovell (2015) 237 Cal.App.4th 772. A homeowner obtained a verdict on a remodeling contract when the general contractor failed to present a verified certificate from the Contractor's State License Board showing that the contractor was licensed at all times during contract performance. The court held however that the homeowner was bound by a judicial admission contained in the homeowner's complaint, even though the complaint was unverified, in which it was alleged the general contractor was licensed and the homeowner was seeking recovery against the contractor's license bond.