• June 21, 2016: Ben Trachtman Obtains Defense Verdict for Target

    Maria Salinas v. Target Corporation
    Orange County Superior Court Case No: 30-2015-00783334-CU-PO-CJC
    Judge James Di Cesare, Department C-16

    Between June 6, 2016 and June 21st, for 8 days of jury selection and trial proceedings, Ben Trachtman tried this personal injury matter for Target Corporation.

    On March 17, 2015, Plaintiff a 37 year-old woman, was shopping with her husband at a Target store located in Santa Ana, California. While in the hair care aisle, Plaintiff slipped and fell on some white cream hair care product that had been splat from a nearby broken bright green tube of Garnier Fructis Flatiron hair care product. The outside of the green tube was smeared with the white cream hair care contents. Plaintiff had been in the aisle for approximately five (5) minutes before falling.

    Prior to trial, Plaintiff had initially reported to Target Management that she saw “two blue things on the floor but did not see the white cream.” In deposition and at trial, Plaintiff denied saying that she saw two blue things on the floor She further testified she never saw the green tube on the floor nor the cream prior to falling. Rather, during the entire five minute period while in the subject aisle, Plaintiff’s attention was fully distracted as she looked for a different hair care product. At trial, Plaintiff testified that a woman with a shopping cart blocked her view of the white cream on the floor. When Plaintiff passed by this woman, she immediately stepped in the white cream, which she claimed was camouflaged by the white-colored VCT floor, and fell to the ground. Plaintiff also testified that the woman with the cart never stopped to assist Plaintiff while she was on the on the ground. Plaintiff also tried to develop an argument that Target management may have later placed the green tube on the floor as Target’s post-incident photos showed the white cream within 18”- 2’ of the broken bright green tube on the floor. Plaintiff also alternatively attempted to present evidence that the green tube was difficult to see because it was adjacent to the bottom of a shelf.

    Prior to the fall, Target did not have any employees assigned to this particular section of the store. However, within 43 minutes prior to the accident, one of Target’s Team Members walked by the subject aisle, within 4-6’ of where the green tube and cream was later found on the floor. Said Team Member testified that while she was walking by the aisle, as she is trained to do, she looked into the aisle for customers and for any items on the floor that could present a slipping hazard. The Team Member testified that the aisle was free and clear of any debris or substances.

    Plaintiff presented expert testimony from Philip Rosescu, a protégé of Brad Avrit (Wexco Engineering), who testified that Target’s VCT flooring was “inherently dangerous” and should be replaced with carpet squares throughout. Mr. Rosescu also testified that Target’s “inspection” was not adequate (per industry standards – Mr. Rosescu could only cite to Costco and CVS as the “industry standard”) because the Team Member did not walk into the aisle and Target did not maintain sweep sheets. Mr. Rosescu further aggressively testified that the Team Member could not have seen the green tube nor the white cream on the floor during said inspection because he timed the observation length to be one second or less. Thus, despite the former Team Member testifying at trial that she conducted the inspection and was sure that neither the green tube nor cream was on the floor, she was not to be believed. Mr. Rosescu also testified that Plaintiff never had a duty to look at the floor surface during the five-minute period she was in the aisle and therefore could not be comparatively at fault. In addition to some other untenable opinions he rendered, Mr. Rosescu testified that a customer in a retail store NEVER has a duty to ever look at the floor surface in front of them as they walk in the store.

    Target took the liability position that the Team Member’s inspection was adequate and met industry standards as both Mr. Rosescu and Target’s expert, Ken Solomon, Ph.D., testified that inspections must be done every 30-60 minutes to be reasonable. Further, since the substance and green tube was only 4-6’ away from her, the Team Member was able to clearly determine whether these items were there (or not) when she looked into the aisle. Dr. Solomon testified that Target’s inspection system was compliant with industry standards and cited numerous industry peers who did not utilize sweep sheets. Finally, Dr. Solomon testified that Target’s VCT floor was very safe and was the flooring of choice in the industry.

    Target also argued, in the alternative, that Plaintiff was substantially comparatively at fault for failing to ever look at the floor surface and take notice of the open and obvious bright green tube of splat product with the white cream sitting only 18” - 2’ away. In fact, multiple witnesses, including Plaintiff’s husband testified that the white cream, on its own, was visible from 8-10’ away.

    On the damages side, Plaintiff went to Kaiser’s Urgent Care facility on the night of the accident and was diagnosed with a lumbar sprain. Plaintiff never returned to Kaiser for any follow-up care (despite providing sworn testimony to the contrary). Instead, Plaintiff hired her attorney and then he referred her to all of her healthcare providers including an orthopedist, a pain management specialist, a chiropractor, another pain management specialist (Sonny Rubin, M.D. -- who performed 3 epidural injections at a perfectly normal (per MRI) C7-T1 disc space), another chiropractor and a neurosurgeon affiliated with Dr. Rubin. Plaintiff never complained of radicular symptom down either arm. Instead, she always complained of never ending pain between her shoulder blades.

    Plaintiff racked up over $66,358.00 in medical specials which were mostly derived by Dr. Rubin’s 3 epidurals wherein he, the surgery center and anesthesiologist charged a whopping $49,000.00 for these three 10-minute procedures.

    On our side, mainly via Michael Weinstein, M.D., we proved that Plaintiff merely sustained, at most, a cervical and lumbar sprain. She had no objective findings for her chronic complaints. Her MRI findings showed longstanding degenerative disc disease findings. Moreover, her cervical MRI showed a couple of very small disc protrusions without any evidence of spinal stenosis or nerve compression. Dr. Weinstein testified that the reasonable and necessary medical treatment for these injuries was limited to a few doctor’s visits, the MRIs and the initial four month chiropractic course of treatment – though he would have preferred that Plaintiff received physical therapy and patient education instead. The reasonable value of these services was approximately $6,575.00. Dr. Weinstein took significant issue with Dr. Rubin’s epidurals and testified that they were not medically indicated. Further, Dr. Weinstein testified that the reasonable value for these epidurals (all-in: Doctor; facility; and anesthesia) was less than $2,500.00 per epidural.

    In closing argument, Plaintiff’s attorney, Raymond Ghermezian, Esq., asked the jury to award Plaintiff the sum of $129,608.00. Ben Trachtman asked the jury for a defense verdict but in the event that the jury found Target to be negligent, Ben asked the jury to award Plaintiff $6,575.00 in past medical specials, $5,000 maximum for pain and suffering, and assess a minimum amount of comparative fault at 60% to Plaintiff, which netted out to a maximum verdict of $4,630.00.

    Result: After deliberating for only 30 minutes, the jury voted 10-2 and gave Target a defense verdict.

    Prior to trial, Target had served a CCP §998 Offer on Plaintiff for $25,002.00. Plaintiff had served Target with an initial CCP §998 Offer in the amount of $99,999.00. Plaintiff later served a CCP §998 Offer in the amount of $49,999. Finally, during the final week before trial, Plaintiff offered to settle the case for $35,000.00 and Target rejected same. Target expects to collect its costs and a substantial amount of expert fees.
  • Ben Trachtman Earns Target Corporation's Prestigious "Bullseye Barrister" for the 2nd Quarter, 2015

    In August, 2015, Target named Ben Trachtman as its "Bullseye Barrister" for the 2nd Quarter, 2015. The "Bullseye Barrister" is a coveted honor among Target's nationwide panel of attorneys and is bestowed on one attorney in each calendar quarter who best demonstrates trial prowess and effective representation. This is the second time in 4 ½ years that Ben has received this prestigious award.
  • Trachtman & Trachtman, LLP Wins MSJ for Target in Premises Liability Matter

    Facts: On August 13, 2012, Plaintiff, Erica Tyler, entered a Target store in Buena Park to pick up a prescription. After filling the prescription, Plaintiff, who was with her mother, was walking along the Main Aisle toward the store exit. While in the midst of a conversation with her mother, Plaintiff encountered a spill on the Main Aisle between the check lanes and the Girls’ clothing department. Plaintiff slipped in a 2’ x 4’ clear and fresh, but dirty, puddle of water on the floor. Plaintiff claimed that her slip caused her to sustain lumbar disc bulges/protrusions at L3-4 and L4-5. Plaintiff underwent conservative treatment followed by two nerve root blocks. Plaintiff also claimed injuries to her right knee.

    Ben Trachtman, with significant assistance from Kevin Henderson, defended the matter.

    Via a Motion Summary Judgment prepared by Kevin Henderson, Target presented a notice defense via the declaration and deposition testimony of a Guest Service Team Lead. Specifically, Target’s witness testified that she had inspected the subject area of the fall within ten (10) minutes of the fall and there was nothing on the floor. Rather, it was clean, dry and free of any foreign debris or substances. Plaintiff attempted to counter Target’s notice defense with oft-used safety expert, Brad Avrit, who provided a declaration that Target’s floor surface (smooth VCT) was inherently dangerous because it was slippery when wet and that Target, via its history of falls within its premises, knew of said dangerous condition. Accordingly, as the argument goes, Target was on actual notice of the dangerous condition and no “inspection” prior to the incident was sufficient to establish a notice defense. In response, because Mr. Avrit’s opinions improperly attempt to nullify existing California law on the subject of notice, we filed objections to Mr. Avrit’s declaration.

    Outcome: On August 25, 2015, Orange County Superior Court Judge Mary Fingal Schulte granted Target’s MSJ. Judge Fingal Schulte found that Target met its burden of proof that Plaintiff lacked evidence to establish a necessary element of her cause of action. Based on same, the burden shifted to Plaintiff to produce evidence establishing that a triable fact existed regarding notice. Judge Fingal Schulte sustained our objections to Mr. Avrit’s declaration and specifically found that the inspection conducted ten (10) minutes prior to the fall established that Target did not have sufficient notice of the condition to correct it. In so finding, the Court emphasized the long-standing principle that the Owner is not an insurer of a visitor’s personal safety.
  • May, 2015: Ben Trachtman Obtains Lopsided Jury Verdict for Target

    Mahtab Taghipourian v. Target Corporation
    USDC Case No: SACV13-01848 AG (JPRx)

    On January 9, 2012, Plaintiff a 45 year-old homemaker, was shopping at the Target store located in Aliso Viejo, California. While in the Toys clearance section, Plaintiff was holding a box containing a “Cars" foldable scooter above her head when the scooter dislodged from the box and struck her in the face. At the time of the incident, the scooter was not properly fastened to its packaging. There were a couple of zip ties that held the subject scooter to the back of the box housing same. However, these particular zip ties had been stripped away from the back of the box and were not holding the scooter.

    Plaintiff testified that the subject box had been located on a shelf above her head. She further testified that as she lowered the box down toward her head, the scooter dislodged and struck her. Target presented evidence that the subject scooters were all located on a lower shelf and that Plaintiff mishandled the contents of the box by lifting the box above her head to check the price.

    Immediately after the incident, both Plaintiff and her husband testified that Plaintiff had 10 out of 10 pain in her nose and head. They also testified that Plaintiff was bleeding out of her nostrils, had blood in her eyes and had blood running down her face. She had blurred vision, dizziness and was in shock. A few hours after leaving the store, Plaintiff testified she then began experiencing 10 out of 10 excruciating neck pain. Despite the foregoing complaints, Plaintiff and her husband testified that they did not go to the emergency room or seek any immediate treatment because they had no insurance. Rather, Plaintiff went to her attorney-referred chiropractor ten (10) days later.

    As a result of the incident, Plaintiff claimed to have fractured her nose and sustained a deviated septum. Plaintiff underwent surgery to repair her deviated septum and to cosmetically remove a small hump on the bridge of her nose. Plaintiff testified that she required an additional nasal surgery because she was unhappy with the appearance of her nose following the initial surgery. Plaintiff's nasal surgeon, Nazih Haddad, M.D., testified that Plaintiff traumatically fractured her nose in the incident and sustained a deviated septum. Dr. Haddad testified at trial that Plaintiff could benefit from an additional nasal surgery even though he had previously testified in deposition that he felt Plaintiff had a very nice result from the first surgery he performed.

    Apart from her nasal complaints, Plaintiff complained that she sustained neck injuries requiring 37 chiropractic visits. Despite said treatment, Plaintiff testified that she still had constant 6-7 out of 10 neck pain on a daily basis.

    Plaintiff incurred $33,000 in past medical specials for her nasal surgery and chiropractic visits. Plaintiff claimed an additional $20,000 in future medical specials for the additional nasal surgery and future chiropractic treatment. Plaintiff testified that she had never previously had any breathing or issues with her nose nor any treatment for prior neck complaints.

    Target introduced evidence via its employees and an Orange County Fire Authority Captain who responded to Plaintiff's request for an ambulance. The Target witnesses and Fire Captain all testified that Plaintiff was in no distress, merely had a ¼ inch cut on the top of her nose, she was not bleeding, did not report any pain to her nose, she was completely alert and calm, and there was no visible swelling to indicate a nasal fracture.

    Target offered evidence that Plaintiff did not sustain a fractured nose or deviated septum in the incident. Specifically, through Dr. Michael Persky, an ENT/plastic surgeon, and via radiologist Matthew Lotysch, M.D., Target argued that Plaintiff's deviated septum pre-existed the incident and there was no evidence of any hemorrhage or typical structural defects establishing the fracture. Specifically, Dr. Lotysch compared a 2009 CT scan of Plaintiff's head with the post-incident 2012 MRI of Plaintiff's brain and conclusively showed that Plaintiff had the same exact deviation in her septum and that the 2012 MRI was devoid of any abnormalities indicative of a fracture.

    Target also disputed the nature and extent of Plaintiff's neck injuries. Specifically, through Michael Weinstein, M.D., a spine specialist, Target proffered that Plaintiff, at most, sustained very modest soft tissue injuries to her neck though there was no objective evidence to support same. Dr. Weinstein testified that if Plaintiff sustained any soft tissue injuries, her treatment would be limited to 20 chiropractic treatments at a cost of $2,000, plus the cost of a neck MRI. Target also presented evidence at trial impeaching Plaintiff's denial of prior neck injuries by establishing that Plaintiff was admitted to the emergency room two and one-half years before the incident complaining of head and neck pain. During that visit, Plaintiff underwent a CT scan of her neck and was diagnosed with an acute cervical strain.

    During closing argument, Plaintiff's attorney told the jury that Target was entirely at fault for the incident and that Plaintiff's claim was properly valued somewhere in the middle between $1.00 and $1 million, implying a $500,000.00 requested verdict. In his closing argument, Ben Trachtman asked the jury to value Plaintiff’s damages at $6,000.00 while reducing that amount by at least 25% for Plaintiff’s comparative fault, for a requested jury verdict of $4,500.00.

    Result: After deliberating for 2 hours and 10 minutes, the jury found Plaintiff’s damages to be $3,350.00 but discounted said damages by its finding that Plaintiff was 40% at fault for the incident. This resulted in a verdict to Plaintiff of $2,010.00.

    However, Target later filed a Motion for Costs and expert fees because the verdict was less than Target’s CCP §998 Offer ($62,000.00). The Court granted Target’s Motion and awarded Target $3,797.31 in costs and expert fees. As a result, Target has a net judgment against Plaintiff for $1,787.31. NOTE: Plaintiff’s last settlement demand to Target was $122,500.00
  • Trachtman & Trachtman, LLP Wins MSJ for Target in Wrongful Death Case

    Facts: On January 19, 2011, at approximately 12:50 a.m., while driving in a freeway car pool lane, a young couple (the decedents), in their early 20’s were killed by a drunk driver, also in his early 20’s. The drunk driver was a Target employee who had been working at a Target store earlier in the evening.

    The Target employee clocked out at 11:35 p.m. following his shift. At the time of the collision, the Target employee was so intoxicated that he was driving his vehicle in the carpool lane, on the wrong side of the freeway and ended up colliding, head on, with the decedents’ vehicle.

    The Plaintiffs consisted of the husband of the female decedent (they were separated but still maintained a very friendly relationship), the then three-year old daughter of the female decedent and the parents of the male decedent. From the discovery undertaken in the matter, both decedents appeared to be very nice, educated and productive young adults who were very close with their respective families. The accident was a true tragedy for these families. Based on these facts, the case had significant exposure.

    Earlier in the evening, during the Target employee’s meal break, the Target employee, in the company of another Target co-worker, left the store and purchased a small bottle of vodka. During the meal break, the Target employee mixed a couple of capfuls of vodka into his soft drink and consumed the drink before returning to clock back in and finish his shift. The unconsumed vodka was left in his vehicle. The co-worker testified that the Target employee told him during the meal break that he hid his consumption of alcohol from Target’s management and that it was not a frequent practice.

    Between clocking back into work following his meal break and clocking out at 11:35 p.m., there was no evidence that the Target employee consumed any additional alcohol. Two co-workers testified that they had interacted with the employee during the later portion of his shift and he exhibited no signs of slurred speech, red eyes or any other behavior that would have led them to believe that the employee had consumed any alcohol that evening or at any point prior to arriving for his shift.

    The Target employee, who survived the accident and is now serving a prison sentence, testified that he not did recall any of the events of that evening. He also testified that prior to the day of the accident, he did not show up to work under the influence of alcohol and knew that Target strictly prohibited him from working while under the influence and consuming alcohol during his shift or on its premises.

    After clocking out at 11:35 p.m. and after agreeing to give a ride home to the same co-worker who shared his meal break with him, the Target employee and the co-worker got into the employee’s car and each took a swig of the vodka before driving away from the premises. On the way to the freeway, the employee decided to stop at a store and pick up a six pack of beer. After re-entering his vehicle, the employee, with his teeth, removed the bottle caps for two beers and handed one to the co-worker. While driving the co-worker home, over a 20 minute period, the employee drank 1-2 beers and threw the bottles out of the window. The co-worker, who consumed no further vodka and did not drink any portion of his beer, testified that the Target employee actually drove him home in a safe manner and further opined that the employee did not appear inebriated during the drive home. After dropping off the co-worker, the employee left and ultimately crashed his vehicle into the decedents’ car.

    Plaintiffs filed suit in Orange County Superior Court against Target claiming that Target knew that the employee had a drinking problem such that he routinely showed up for work after consuming alcohol. Plaintiffs further alleged that the employee routinely drank alcohol during his shift and that the employee did so because the employee “believed that the use of alcohol on the job helped him to relax and deal more comfortably and effectively with Target customers and helped him to deal with the stresses of his regular job duties for Target.” Plaintiffs also alleged that the on-the-job drinking of alcohol by the employee was broadly incidental to his work and was not so unusual or startling that it would be unfair to include the risks of such conduct with other costs of Target’s business enterprise,” and “would further the public policies in favor of imposing vicarious liability on the employer for risks arising out of the employment.” Finally, Plaintiffs alleged that it was foreseeable that the employee would attempt to drive home from work while still intoxicated and that said conduct was a substantial factor in causing the accident approximately 1 hour and 15 minutes after clocking out.

    After completing discovery, Trachtman & Trachtman filed a Motion for Summary Judgment with the Court. We argued that Plaintiffs failed to establish any basis for Respondeat Superior and/or vicarious liability. Target contended that its policies strictly forbade alcohol consumption and that it had no knowledge whatsoever of the employee’s drinking on the night of the incident. We also rebutted Plaintiffs’ “broadly incidental” claims while further rejecting Plaintiffs’ factual contentions concerning the employee’s practice of alcohol use and the purported reasons for same. The employee refuted these claims with his own testimony. In the end, Plaintiffs could not establish any of the facts which were analogous to precedent cases finding an employer liable for its employee’s use of alcohol. Rather, we argued that Plaintiffs were essentially contending that Target should be strictly liable to them because they proved that Target’s employee had consumed alcohol during his shift.

    Outcome: On October 20, 2014, Orange County Superior Court State Judge Linda Marks granted Target’s Motion for Summary Judgment. Ben Trachtman, Ryan Craig and Kelli Trachtman worked very hard to collaborate on this victory.

  • Trachtman & Trachtman, LLP Recovers an Eight-Figure Settlement for Contractor in Construction Payment Dispute

    Facts: One of Trachtman & Trachtman, LLP’s industry-leading contracting clients was retained as the design-build general contractor for a $30,000,000+ construction project. After performing most of the work, the Owner and Construction Lenders got into a dispute over the loan and the lenders stopped funding. The loan funds were the sole source of payment for the client and its subcontractors and subconsultants.

    After the fund stoppage, the client stopped working on the project. Trachtman & Trachtman, LLP recorded a mechanic’s lien and served the Lenders with a bonded stop notice. Following non-payment, Ben Trachtman filed suit on behalf of the client including causes of action for breach of contract, foreclosure on the mechanic’s lien, enforcement of the stop notice and common counts.

    Soon thereafter, the Owner filed for bankruptcy protection. Our client pursued its bonded stop notice rights which turned out to be the sole avenue for our client to recover its damages. Trachtman & Trachtman, LLP filed a Motion for Summary Adjudication (“MSA”) to establish that the client’s bonded stop notice was valid, thereby leaving only the quantum of the client’s claim to be decided. Ryan Craig did a terrific job handling the law and motion associated with the MSA.

    Outcome: Following our MSA victory, and just prior to trial commencing in early, 2013, Trachtman & Trachtman, LLP procured an eight-figure settlement in favor of its client. It was a long, hard-fought battle with numerous procedural roadblocks thrown in our way. In the end, through dogged perseverance, we prevailed and our client received what it deserved.

  • Trachtman & Trachtman, LLP Recovers Several Million Dollars for Subcontractor in Construction Payment Claim

    Facts: One of Trachtman & Trachtman, LLP’s prized subcontractor clients worked on a $200,000,000 high rise luxury project. At the end of the project, our client had not been paid significant monies owed for base contract and/or retention. Further, our client had not been paid for change order work involving close to 100 hotly-contested additional tasks not included in its base contract.

    After filing a mechanic’s lien, a suit for breach of contract, foreclosure of mechanic’s lien and common counts, Ben Trachtman worked very closely with our client’s Senior officers and field personnel to prosecute the action. The matter was moved to binding arbitration where three of the Construction Industry’s top arbitrators (all from different states) were impaneled to decide the matter. Some of the preeminent construction attorneys in the Country were retained to represent the Owner, General Contractor and other Subcontractor claimants. The main defendant, the Owner, alleged that it was owed several million dollars in credits for work not performed or for non-compliant work that required removal and re-installation. Our client vigorously disputed the validity of these offset claims.

    On behalf of our client, Ben Trachtman participated in over 45 days of binding arbitration hearings spanning several months.

    Outcome: After prevailing, via favorable Interim Awards on the vast bulk of the claims being asserted during the arbitration, Ben Trachtman was able to procure a settlement of several million dollars on behalf of our client. Trachtman & Trachtman, LLP’s client was very happy with the result.

  • Trachtman & Trachtman, LLP Wins MSJ for Target in Late, 2012

    Facts: On December 11, 2009, after entering the Aliso Viejo Target store with her husband and two small children, Plaintiff was walking along the main aisle when she allegedly and suddenly slipped and fell on some loose pieces of popcorn. Approximately two (2) to eight (8) minutes prior to the fall, a Target Team Member had walked through the fall location and stated that there had been no popcorn on the floor during her pre-incident “inspection.” Plaintiff allegedly had become recently pregnant prior to her fall. Plaintiff claimed that the force associated with the fall caused her to sustain a spontaneous abortion/fetal demise. Plaintiff also claimed soft tissue injuries to her low back.

    Ben Trachtman, with the assistance of Kelli Trachtman, defended this matter. On the damages front, we had garnered the necessary proof to disprove and defeat Plaintiff’s fetal demise claim. We obtained evidence and expert testimony from the emergency room physician that Plaintiff was not pregnant at the time of the incident.

    As for liability, relying on the two (2) to eight (8) minutes prior “inspection”, Kelli Trachtman took on the primary role of filing a Federal Court MSJ on the basis that Plaintiff could not establish that Target had actual or constructive notice of the popcorn debris. Plaintiff opposed the motion primarily relying on an oft-used “expert” to state that Target failed to comply with industry standards requiring sweep sheets and/or specifically documenting the “inspection” relative to the subject fall location. Accordingly, Target’s self-serving Team Member testimony could not meet Target’s purported burden of proof that it had no notice.

    Outcome: In November, 2012, U.S. District Court Judge James Selna granted Target’s MSJ and held that it was Plaintiff’s burden of proof to establish notice and that Plaintiff did not produce any evidence in support of her notice burden. The Court rejected Plaintiff’s expert declaration and found that said declaration “erroneously asserted that sweep sheets were required.”

  • Trachtman & Trachtman, LLP Wins Another MSJ in a Premises Liability Matter

    Facts: On October 17, 2010, an 80-year old male customer and his wife traveled to the Irvine, CA Target store. When Plaintiff arrived to the store, it was raining outside. He and his wife walked into the store and on to the main aisle. Plaintiff was walking along the main aisle toward the greeting card display when he fell down to the floor. After the fall, two Target Team Members arrived to the scene to investigate. Both Team Members inspected the floor surface and found no foreign substances or debris near or within the spot of the fall. The Leader on Duty asked Plaintiff and his wife what, if anything, Plaintiff slipped on and neither of them could identify anything.

    Further, Plaintiff and his wife testified in deposition that neither of them saw any liquid on the floor nor any other substance. Further, Plaintiff testified that he did not know if the spot of his fall was wet before he stepped into the spot. Notwithstanding the foregoing, Plaintiff claimed that he must have slipped on water dragged into the store by other patrons because it was raining when he entered the store. As for notice, there was no record of any Team Member through the area at any time reasonably close to the fall time.

    Ben Trachtman defended the matter. Based on the foregoing evidence, Kevin Henderson took on the primary role of filing a MSJ in Federal Court on the basis that Plaintiff could not establish that he was injured on a dangerous condition existing within Target’s premises. Plaintiff could not establish that the fall location was wet prior to his fall nor that he fell due to any other foreign/dangerous condition.

    Outcome: In June, 2012, U.S. District Court Judge Josephine Staton Tucker granted Target’s MSJ while specifically relying on Plaintiff’s deposition testimony that he could not identify a specific substance causing him to fall and that he did not know that the spot of his fall was wet before he stepped into the spot.

  • Trachtman & Trachtman, LLP Obtains MSJ Victory in Premises Liability Matter

    Facts: On February 11, 2010, an elderly female guest fell on a main aisle of a Target Store located in Riverside, California. As a result of her fall, the Plaintiff sustained several significant injuries including a broken ankle and a torn rotator cuff. Plaintiff testified that she fell because she stepped on something “sticky.” She was unable to provide any details whatsoever about the substance, including its composition, size and/or consistency.

    Immediately after the fall, two independent third party witnesses arrived to the scene followed by several Target Team Members. Both independent witnesses and Target’s employees examined the floor and found no substance, debris or object in proximity to the fall location which could have caused Plaintiff’s fall. NOTE: Plaintiff had a significant history for self-caused falls.

    Prior to Plaintiff’s fall, the two independent witnesses walked through the subject fall location and found the floor to be free of any defects. Further, a Target Team Member had inspected the floor surface within 15 minutes of the fall and also confirmed that it was clean and dry.

    Ben Trachtman defended the matter. Matt VandeWydeven and Ryan Craig provided assistance and took on the primary role of filing a MSJ in Federal Court on the basis that there was no dangerous condition and that Target had no notice assuming, arguendo, that there was a triable issue of fact regarding the floor condition.

    Outcome: In a 26-page written decision, U.S. District Court Judge Virginia Phillips granted our MSJ on the grounds that Plaintiff failed to meet Plaintiff’s burden of proof that Target had notice of the purported dangerous condition. Plaintiff attempted to introduce an expert declaration from an oft-used Plaintiff’s premises liability expert to claim that Target failed to conduct reasonable inspections (and was therefore on notice) because Target did not have written proof of such inspections via sweep sheets. The Court rejected Plaintiff’s expert’s declaration and found that Plaintiff failed to meet her burden by introducing adequate evidence to support her negligence claims.

  • Ben Trachtman Obtains Defense Verdict in Multi-Million Dollar Personal Injury Exposure Case

    In December, 2010, in front of a Downtown Los Angeles jury, Ben Trachtman obtained a defense verdict for Target, the firm's prized national retailing client. Plaintiff, a 40 year old Permanent Make-up Artist, sued Target in Los Angeles Superior Court, Downtown (Central District). Plaintiff alleged that she and her 12 year old daughter entered one of Target's stores to purchase an iPOD boombox. After selecting the item, they walked up to the check stand to purchase it. When the cashier rang up the product, it came out $30 higher than Plaintiff thought the product should cost. Plaintiff decided to walk back to the electronics department to conduct a price check because of the discrepancy. [The discrepancy was due to Plaintiff's inadvertent selection of a unit that had a CD player within it]. While walking back out through the check lane, Plaintiff alleged that her foot came into contact with small toys that were strewn about the floor. At the time of the incident, Plaintiff reported that she "scuffled with a small boy who was in her way and then fell to the ground." Plaintiff testified that she never saw the purported toys on the floor prior to allegedly stepping on them despite the fact that she walked through the area (to get to the actual cash register) only a couple of minutes prior to the fall. To try and prove that the toys had been on the floor in excess of fifteen minutes, to impute notice to Target, Plaintiff had her daughter testify that she saw the toys on the floor when they entered the store and they remained there until Plaintiff tripped on them. Plaintiff and her daughter also testified that Plaintiff was on the floor for 3-5 minutes, that Plaintiff's daughter physically helped her up (because Plaintiff's injuries were so debilitating) and that she assisted her mother in walking straight back into the check lane to report the fall and injuries. A store surveillance film impeached Plaintiff's post-fall claims and specifically showed Plaintiff getting up on her own, within 9 seconds and her daughter was nowhere in sight. The video next showed her purposefully walking from the fall location to the electronics department.

    Plaintiff incurred approximately $1.3 million in medical bills for five (5) back and neck surgeries (two-level fusions at two lumbar areas, one two level fusion in the cervical spine and a remedial procedure in the lumbar area); she claimed, at 40 years old, that she was completely unemployable for the rest of her life and had experts testify to same. While Plaintiff admitted that she had a lumbar diskectomy in 2004, she claimed in deposition testimony and written discovery responses to be asymptomatic for 2 years prior to the fall. Plaintiff aggressively attempted to initially conceal that she had previously herniated a disk in her neck. Through extensive discovery and investigation, including depositions of Plaintiff's prior treaters in NY, Plaintiff's history was exposed and her claims impeached.

    Target's liability defense was based on the eyewitness testimony of the cashier who testified that she observed the floor immediately after Plaintiff fell and no toys were present; a Guest Services Team Leader who testified that there were no toys on the floor within 5-10 minutes of the fall as she had speed-weaved through the area; and the Leader on Duty who testified that Plaintiff reported that she fell over a small boy who she did not see as she hurriedly attempted to exit the check lane.

    After successfully getting the Court to bifurcate the liability phase of the trial from the damages phase, the jury returned a defense verdict in favor of Target. It is also noteworthy that Target never offered Plaintiff any money to settle the case.

    Update: Plaintiff appealed the verdict/judgment primarily on the grounds that the trial court abused its discretion by allowing into evidence the hearsay testimony of one of Target’s Team Members. Specifically, the court allowed Target’s cashier to testify about what the boy’s mother said immediately after the fall, including a statement to the effect that Plaintiff tripped over her boy. Horvitz & Levy represented Plaintiff in her appeal.

    Trachtman & Trachtman, LLP handled the appeal. It was a collaborative effort between Ryan Craig and Ben Trachtman. Our primary position was that the mother’s statement constituted a clear exception to the hearsay rule because they were excited utterances. Moreover, there was no legitimate basis to claim that this evidence prevented Plaintiff from achieving a more favorable result. Rather, there was a plethora of evidence, including most notably the wholesale impeachment of both Plaintiff’s and her daughter’s testimony regarding all salient circumstances of the fall.

    Outcome: Ben Trachtman argued the appeal on behalf of Target. On October 22, 2012, in an interesting-reading decision highlighting the impeachment evidence introduced at trial, the Court of Appeal unanimously affirmed Target’s judgment against Plaintiff.

  • Ben Trachtman Earns Target Corporation's Prestigious "Bullseye Barrister" for the 4th Quarter, 2010.

    In February, 2011, Target named Ben Trachtman as its "Bullseye Barrister" for the 4th Quarter, 2010. The "Bullseye Barrister" is a coveted honor among Target's nationwide panel of attorneys and is presented to the attorney that best demonstrates trial prowess. Ben is very proud to have earned this distinction.
  • Trachtman & Trachtman, LLP Win MSJ in Drive-By Shooting Lawsuit

    In June 2011, Trachtman & Trachtman, LLP successfully obtained Summary Judgment for a restaurant and bar client in a general negligence and premises liability case predicated upon a drive-by shooting. This result was obtained through the efforts of Kevin Henderson, Ryan Craig and Bryan Zuetel

    Facts: Plaintiff was a patron at a restaurant and bar in Upland, California on the evening of October 31, 2008. While patronizing the restaurant and bar, Plaintiff neither was involved in any physical or verbal altercation, nor observed any physical or verbal altercation. After exiting the restaurant and bar at closing time and while in the adjacent parking lot, Plaintiff was involved in a verbal exchange which lasted thirty (30) seconds or less with an occupant or occupants of a sport utility vehicle. At the end of the exchange and without any warning, the occupants brazenly and suddenly shot Plaintiff nine (9) times and fled the scene. The Plaintiff survived the random drive-by shooting. The third party criminal perpetrators were never apprehended.

    The Complaint filed in the San Bernardino County Superior Court set forth causes of action for (1) premises liability and (2) general negligence. Plaintiff claimed that the restaurant and bar maintained inadequate and ineffective security personnel to protect the Plaintiff from random, unforeseeable acts of violence without imminent threat.

    Despite allegations of inept management, the failure to communicate between security personnel and the owners of the restaurant and bar, 70 alleged criminal incidents on the property, 296 alleged calls for police service, the failure to place warnings on the property regarding potential violence, and the alleged presence of a motorcycle gang on the night of the incident, Defendant moved forward with a Motion for Summary Judgment.

    A Motion for Summary Judgment was filed on the grounds that (1) Defendant did not have a legal duty to protect Plaintiff from the unforeseeable drive-by shooting; and (2) Defendant was not the legal or proximate cause of the unforeseeable drive-by shooting of Plaintiff.

    Outcome: The Court granted the Motion for Summary Judgment on the ground that there was no triable issue of fact as to causation.
  • Trachtman & Trachtman, LLP Win MSJ in Trademark Lawsuit

    In February 2011, Trachtman & Trachtman, LLP successfully obtained Summary Judgment for Lazar Technologies, Inc. in a trademark infringement case. Ryan M. Craig authored the winning Motion.

    Facts: Plaintiff is the owner of a company that manufactures and sells bottle capping and closure equipment to businesses in the food, cosmetic and pharmaceutical industries. Plaintiff alleged that it was the successor in interest to a trademark registered with the United States Patent and Trademark Office in 1999. The Complaint filed in the United States District Court for the Central District of California contended that Lazar Technologies, Inc. (“Lazar”) set forth causes of action for (1) federal trademark infringement, (2) federal unfair competition, (3) California unfair acts, and (4) federal trademark dilution. Plaintiff’s claims are based on Lazar’s use of Plaintiff’s Mark to sell Plaintiff’s goods, in particular, Plaintiff’s manuals and capping and closure equipment, as well as Lazar’s use of Plaintiff’s Mark to advertise Lazar-branded replacement parts for Plaintiff’s machines in print advertisements and on Lazar’s website.

    Between approximately 1995 and 2006, Lazar purchased used or secondhand machines with Plaintiff’s Mark, some of which were more than fifty years old, from various sources, including direct manufacturing companies, equipment dealers and auctions. Lazar either refurbished the machines and sold them as used machines, or cannibalized parts from the used machines to provide servicing and repairs with the used parts to Lazar’s clients utilizing machines manufactured previously by Plaintiff or its predecessors. When Lazar purchased some of the used machines and used parts from third-party sources, the purchase would sometimes include the corresponding used operating manuals that accompanied the machines. Lazar never sold new operating manuals, and only resold used manuals under the Mark.

    Currently, Lazar focuses its business on designing, manufacturing, selling and servicing its own Lazar-branded machines for packaging containers in the chemical, food and pharmaceutical industries. Lazar never advertised, marketed or sold any of its own Lazar-branded machines while palming them off as Plaintiff’s machines and provides Lazar-branded replacement parts for both Plaintiff’s machines and Lazar-branded machines.

    A Motion for Summary Judgment was filed on the grounds that (1) laches barred the Plaintiff’s claims; (2) the first sale doctrine obviated several of Plaintiff’s causes; (3) the nominative fair use doctrine also barred the Plaintiff’s claims; and (4) Plaintiff’s Mark was not “famous” under the current standard for trademark dilution. Plaintiff requested dismissal of the federal trademark dilution claim in its Opposition to the Motion.

    Outcome: The Court granted Lazar’s Motion for Summary Judgment.
  • Another Successful MSJ on a High Exposure Case!

    Trachtman & Trachtman, LLP represented a general contractor in a personal injury action in which the plaintiff alleged that the general contractor and its subcontractor were responsible for the plaintiff being negligently exposed to the Coccidioides immitis fungus which caused him to contract Coccidioidomycosis also known as Valley Fever.

    Facts: Specifically, the general contractor, during the course of its construction of a multi-level parking structure was requested, by the owner of the property, to place excess soil generated by the project on a lot that was immediately adjacent to plaintiff's office. Plaintiff claimed that after the excess soil was placed on the lot, it was not properly maintained, i.e., it was not watered or covered. Furthermore, that as a result of the general contractor's failure to properly maintain the stockpile of soil, he was exposed to excessive dust which allegedly contained the Coccidioides immitis fungus which ultimately resulted in a diagnosis of Valley Fever. Plaintiff had claimed medical special damages in excess of $150,000 and a lost income/reduced earning capacity claim exceeding $800,000. In addition to the plaintiff's claim for general negligence, plaintiff's spouse also brought a derivative claim for loss of consortium.

    Through comprehensive discovery conducted by Kevin L. Henderson, Trachtman & Trachtman, LLP was able to establish that the standard of care in Southern California did not require a general contractor to test the soil for the Coccidioides immitis fungus prior to performing excavation work. Likewise, that the plaintiffs did not have any evidence that the excess soil contained the Coccidioides immitis fungus. As a result, Ryan M. Craig and Kevin L. Henderson, brought a successful motion for summary judgment on the complaint on the grounds that plaintiff could neither establish a duty nor causation for the claimed fungal exposure in that (1) not only were general contractors not expected or required to specifically test for the fungus but that the injury complained of was not reasonably foreseeable as evidenced by the fact that that the county public health agency reported only 1.3 infection cases per 100,000 persons in the County; and (2) that the plaintiffs had produced no evidence to show that the fungus was in the stockpile of excess soil deposited by the subcontractor for the general contractor as compared to a myriad of other potential sources in which plaintiff could have been exposed to the fungus in Southern California.

    Outcome: In March, 2009, Orange County Superior Court Judge Stephen Sundvold granted our MSJ. We are proud of the work performed by Ryan Craig and Kevin Henderson.

    UPDATE: In 2010, the California Court of Appeal, 4th District, Division 3, affirmed the lower court's decision granting our MSJ. Thereafter, the CA Supreme Court denied review.
  • Marc Trachtman Named Super Lawyer

    In 2007, Marc Trachtman was named a “Southern California Super Lawyer” by the publishers of Los Angeles Magazine. Through an extensive selection process, Marc’s peers singled him out to bestow this prestigious distinction. Only 5% of the total lawyers in Southern California are listed as “Super Lawyers.” We are very proud of Marc’s achievement.