Cases of Interest

• ADA Accessibility Compliance
• Alternative Dispute Resolution
• Appellate
• Business
• Construction
• Education Law
• Employment
• Employment Practices & Liability Insurance
• Environmental Law & Property Rights
• Healthcare
• Personal Injury
• Plaintiff Representation
• Premises Liability
• Products Liability
• Professional Liability
• Public Entities
• Real Estate

• On behalf of a local school district, defended the constitutionality of the Pledge of Allegiance before the Eastern District, the Ninth Circuit Court of Appeals and the United States Supreme Court. The plaintiff alleged that the recitation of the words "Under God" in the Pledge of Allegiance violated the Establishment Clause of the United States Constitution. Ultimately, the United States Supreme Court ruled that the plaintiff as the non-custodial parent did not have standing to bring the suit.
• Represented one of the nation's largest bridge builders against the State of California involving multi-million dollar claims pertaining to air quality issues concerning construction equipment. Case resolved favorably for client prior to trial.
• Successfully negotiated resolution on behalf of a property owner in a complex defeasance, fraud, unlawful detainer action involving a commercial prune-packing facility.
• Obtained summary judgment in favor of a law firm against claims of malpractice that allegedly caused a $20,000,000.00 loss in county tax revenue.
• Successfully defended hospital and two individually named nurses against allegations of Elder Abuse, Wrongful Death, Negligence and Unfair Business Practices resulting in dismissal of claims against the clients without any payment on their behalf.
• Successfully defended a multi-million dollar action alleging inverse condemnation in the form of both regulatory and physical taking arising from denials of development applications and increase flood burden due to public projects.
• Defended one of the world's largest international retail chains in an action filed by a shopper who allegedly sustained severe shoulder and neck injuries when boxes filled with merchandise fell on her in a shopping aisle. The case was resolved with no cost to the client as a result of tender of defense to the vendor/supplier.
• Successfully defended autistic services company and its owners against allegations of breach of fiduciary duty, duty of loyalty, misappropriation of trade secrets, unfair competition, interference with prospective business advantage, and conversion. Defeated request for preliminary injunction and negotiated favorable settlement on behalf of client.
• Successfully disposed of claims asserted against a public entity employee through use of the Anti-SLAPP provision of the California Code of Civil Procedure resulting in an award of attorney's fees to the public entity client.
• Summary judgment granted in the Eastern District on behalf of entity and police officer in pursuit case that alleged the death of the suspect was a violation of the Fourteenth Amendment. Overturned Ninth Circuit ruling by successfully arguing before the United States Supreme Court for a new standard governing the constitutionality of police conduct in pursuit of fleeing suspects resulting in unintentional injuries or death.
• Defended psychiatric care facility in a civil action and multiple administrative investigations arising out of an alleged premature hospital discharge of a schizophrenic patient. The former patient broke through the cockpit of an airliner one month post-9/11 tragedy. The incident was the subject of a "20/20" program in which the passengers spoke of their intervention to restrain and sedate the patient. The incident also contributed to the FAA's implementation of adding locks to cock-pit doors. Porter Scott successfully guided the hospital through the administrative investigations initiated by state, federal and private regulatory authorities and prevailed on summary judgment before the trial court, and upon appeal.
• Prevailed on summary judgment, as well as at the Ninth Circuit, on claims filed against a Sheriff's Department and two deputies for use of deadly force. Deputies shot at plaintiff when he refused to obey commands to stop and drop a three foot long metal sword which he had been carrying throughout a residential neighborhood, exhibiting bizarre and erratic behavior. The deputies shot as plaintiff began to gain access to a residence via the backyard after numerous failed attempts to gain his attention and cooperation. At the time of the shooting, deputies were unaware that the home was the unoccupied home of plaintiff himself. Plaintiff sustained serious injuries and as a result became paraplegic. Both courts held that deadly force was appropriate even where there were no identified third parties to whom the suspect posed a serious threat of harm.
• Successfully obtained dismissal of the Sacramento County Sheriff and Sacramento County via a Summary Judgment Motion on claims that the jail failed to notify a pre-trial detainee of extra-jurisdictional outstanding warrants, detainers, holds or notices, where plaintiff was held over without trial for over six years. Significantly, the District Court determined that the Sheriff was entitled to Eleventh Amendment immunity for merely acting as jailor pending criminal proceedings, regardless that those charges were later dropped on Sixth Amendment grounds (violation of right to speedy trial).
• Porter Scott represented an employer who fired an accounting manager for good cause. After being fired, the employee stole private company financial records and mailed them to several of the employer's clients and employees with a cover letter that wrongfully accused the company of having financial difficulties and of stealing client money. Porter Scott was able to immediately have the Superior Court issue a temporary restraining order on the fired employee to prevent her from doing more damage to the company's reputation. Later Porter Scott had a judgment entered against the fired employee to permanently have her not contact the company's clients or employees. She was also compelled to return the stolen computer files.
• Obtained settlements to date exceeding $1,000,000 for the owner of an ultra large single family residential property to cover construction defects, the case continues against remaining defendants.
• Norm Prior and Jacqueline Zee obtained Summary Judgment on behalf of an acute care hospital against claims of medical negligence that allegedly caused a patient to contract meningitis after the  tip of a catheter broke off during spinal surgery. The patient underwent multiple subsequent surgeries and hospitalizations which the patient alleged resulted in permanent disabling injuries.
• Norm Prior and Jacqueline Zee obtained Summary Judgment  in favor of a nationwide tissue bank against claims of medical negligence for providing infected corneal tissue for transplantation that resulted in the permanent loss of vision and disfigurement of the tissue recipient. 
• Represented state agency in high-profile employment matter involving termination of former executive director.  Through summary judgment, obtained dismissal of all civil rights claims against the individual board members of state agency, affirming principle that public employees are not protected by the First Amendment when they speak as part of their official duties, even when testifying in an unrelated criminal matter. Successfully obtained summary judgment in favor of agency on plaintiff’s fair employment and housing claim, wrongful termination claim, and pay-discrimination claim.
• Defended large county against claims that county’s jail, one of the largest in the nation, did not provide sufficient accommodation to disabled persons. Successfully established plaintiff’s lack of Article III standing at pleadings stage, preventing plaintiff from obtaining injunctive relief that would require significant overhaul of county detention facilities. Obtained summary judgment in County’s favor against plaintiff’s damages claims under state and federal law, establishing no monetary liability for County’s alleged failure to provide accessible detention facilities
• Obtained summary judgment, which was upheld on appeal, on the basis of assumption of the risk when a participant in an arm wrestling competition at a local fair suffered a spiral fracture to the arm when competing against a much larger and more experienced opponent.  The unsuccessful plaintiff was ultimately ordered to pay our client its costs incurred in defending the suit and the appeal.
• Summary judgment granted on behalf of a county employer in a race discrimination, retaliation, and defamation case.  The plaintiff social worker was terminated for performance reasons following her involvement in a highly publicized case involving the death of a toddler.  The court disposed of all of her claims, finding that the county employer had demonstrated legitimate, non-discriminatory and non-retaliatory reasons for its decision to terminate her. 
• Obtained a dismissal of action brought by a customer of a large local retail chain who claimed to have slipped in dog feces inside the store despite surveillance video which confirmed that there had been no animals in the store and nothing on the floor up until the moment of the accident.
• Obtained summary judgment, which was upheld on appeal, on the basis of assumption of the risk when a participant in an arm wrestling competition at a local fair suffered a spiral fracture to the arm when competing against a much larger and more experienced opponent.  The unsuccessful plaintiff was ultimately ordered to pay our client its costs incurred in defending the suit and the appeal.
• Porter Scott attorneys David Melton and Colleen Howard obtained a defense verdict for a retailer in a jury trial in the Sacramento County Superior Court.  The plaintiff alleged that he was beaten by the store's loss prevention associates after a verbal altercation between the plaintiff and another customer had started inside the store. 
• Partners Carl Calnero and Carl Fessenden, assisted by associate Derek Haynes, achieved a defense verdict in a catastrophic injury case filed against a major public university.  In this matter, the injured plaintiff and his wife sued the university, alleging, among other things, the university was responsible for creating a dangerous condition of public property with respect to its roadways and/or with respect to use of a four seat golf cart/utility vehicle without seatbelts.  The plaintiff had been on campus, working with campus staff, helping install and/or troubleshoot certain wireless technology.  Plaintiff fell out of the rear of a four seat utility cart or shuttle at approximately 9:00 p.m., after his laptop had fallen off of his lap and onto the ground.  The Porter Scott attorneys contended that the plaintiff carelessly stepped off of the golf cart and argued further, based on scientific testing, that such an individual could not possibly be thrown involuntarily from such a vehicle.  The plaintiff had suffered severe brain injuries and was seeking multi-million dollars in damages.  Following a 30 day jury trial, a jury returned an unanimous verdict on all counts in favor of the university, rejecting the notion that the university’s roadways were in a dangerous state and/or rejected the notion that failure to provide seatbelts on shuttles or golf carts constituted a dangerous condition of public property.
• Porter Scott obtained a $9.1 million binding arbitration award before a three judge panel on behalf of one of Sacramento's major beverage distributors.  Following a nine day binding arbitration in San Francisco before a JAMS panel, partners Carl Calnero and Martin Jensen prevailed in a major commercial/business matter of first impression in California.  In the case, the firm represented a family-owned, successful beverage distributor who had been denied a fair market value for the sale of their business, based on a contract provision within the distribution rights agreement.  That provision purportedly gave the right to the manufacturer to approve or disapprove of the dealership rights sale.  The manufacturer, one of the nations largest beer and alcoholic beverage manufacturers, had rejected the sale claiming that the designated purchaser did not satisfy its requirements for approval. Despite the fact that that same purchasing designee had in fact been appointed as a beverage distributor for that very same manufacturer in various other parts of California.  The manufacturer contended that it had the right to determine which markets would be served by various dealerships, and therefore impinged on the right of Porter Scott’s client to sell its distribution rights to a bonafide purchaser for a fair market value.  California Statutory Law dictates that in such a scenario, if the “disapproval” was accomplished in bad faith, the manufacturer would be responsible to the selling dealer for the difference in fair market value lost.  Although statutory law had been clear, the case and decision now cements the rights of dealers to alienate or sell their exclusive distribution rights, no longer subject to the whims of a manufacturer or supplier.
• Obtained Ninth Circuit reversal of preliminary injunction sought by life-term state prisoners seeking more frequent parole hearings than provided under Proposition 9.  The prisoners claimed  changes in statute occurring after commission of offenses and sentencing violated the Ex Post Facto Clause of U.S. Constitution.  In a published opinion, the Court of Appeals held the proposition was not unconstitutional.  Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir., 2011)
• Successfully obtained dismissal in favor of retailer when a customer fell off a ladder designated for employee use only.  Plaintiff spotted a ladder designated for employee use only, untied the ladder from a secure location, and climbed up the ladder to retrieve merchandise from the top shelf of a display, despite a sign instructing customers to ask for assistance with merchandise on the top shelf.  Plaintiff fell off the ladder, and claimed the retailer was liable since the ladder created an “acknowledged temptation.”  Porter Scott obtained a defense verdict at arbitration.  Plaintiff asked the arbitrator for an award of $350,000.00.  Plaintiff agreed to dismiss her case a few weeks after the arbitration award.
• Defense verdict in favor of municipality against claims of excessive force and deliberate indifference to plaintiff’s medical needs against a police officer and his law enforcement employer.  Plaintiff was detained in the sobering cell of the jail for DUI and hit and run.  Despite having a .18 blood alcohol level, plaintiff claimed the police department was deliberately indifferent when they deprived him of his mood stabilizing prescription while he was detoxing from alcohol consumption.  Plaintiff also alleged excessive force after he attacked an officer in the sobering cell.  A jury unanimously found in favor of the police department, but were hung (7 to 1 in favor of the officer) as to the individual police officer.  Plaintiff dismissed the officer a few weeks after the verdict.
• Obtained summary judgment in favor of a retailer and pharmacist in pharmacy malpractice claim.  After plaintiff and his caregiver exhibited threatening and menacing behavior, the retailer deactivated plaintiff’s prescription in its computer system, forcing plaintiff to find another pharmacy to refill his prescription.  Plaintiff sued for malpractice over the deactivation of his prescription and the delay in refilling it.  The court granted judgment in favor of the retailer and the pharmacist.
• Summary judgment was granted by the Eastern District of California in favor of the University of California in a heavily litigated Title IX case that was pending for more than four years. The plaintiffs, former UC Davis students, claimed the University failed to accommodate the interests of its female students because women who want to be on the intercollegiate wrestling team at UC Davis are required to try out for the team under the same requirements as male students who want to be on the team. Ruling on an issue of first impression in the Eastern District of California, the judge held that the plaintiffs had failed to give the campus adequate notice of their claim, resulting in its dismissal. In an earlier motion for judgment on the pleadings, Porter Scott was successful in obtaining a ruling dismissing the majority of plaintiffs’ claims on the basis of the statute of limitations and dismissing claims against the individual defendants under 42 USC section 1983 on the basis of statutory pre-emption.  The plaintiffs filed an appeal.  During the pendency of the appeal, the U.S. Supreme Court issued an opinion holding that individuals can be held liable in Title IX cases under section 1983.  The Ninth Circuit recently issued an opinion overturning the lower court on the notice issue and remanding the matter to the district court for further proceedings.  UC Davis, a recognized leader in women’s athletics, continues to vigorously defend against the claims.