The Real News

August, 2018
Foreseeable Risk for Property Owners Gets More Complicated

In California, the general rule is that property owners are responsible to persons who are invited onto their properties to protect them from foreseeable risks. In a recent appeal the question of what is a foreseeable risk was opened up, leaving property owners to question what they are responsible for as it relates to their invitees.

In the case in question, Carolyn Staats (Staats) nearly died when she was attacked by a swarm of yellow jackets while playing golf on a course owned by Vintner's Golf Club, LLC (Club). Staats sued Club for general negligence and premises liability. The Trial Court granted summary judgment against her based on the claim that Club owed no duty to protect its patrons from yellow jackets that came from an undiscovered nest on the course. How could the Club be held responsible to protect Staats from a yellow jacket nest they didn't even know existed? Staats timely appealed.

In July, 2013, Staats was taking a golf lesson from one of the Club's instructors, Jeffrey Dennis. As she was preparing to take a shot on the fairway of the fifth hole, she was attacked by a swarm of yellow jackets. Dennis tried to swat the yellow jackets away from her. She was quickly overwhelmed and the two fled the area. Staats started to lose consciousness and Dennis ran ahead to a local fire station. The fire paramedics gave her a shot to combat the toxins from her stings and rushed her to the hospital. One paramedic claimed Staats was "within fifteen seconds" of dying.

Staats was stung over 50 times. She experienced "redness, welts, and swelling" all over her body. She spent the night in the intensive-care unit and missed more than five weeks of work. She remains highly allergic to yellow jacket stings. She now receives three injections per month and has to carry multiple epinephrine pens.

At the time of the attack, the Club had no written policy for inspecting for dangerous conditions or pests. They did contract with a pest-control company to discover and eradicate roaches, insects, and ants from the Club's restaurant and offices. The Club did not set traps or take other measures to control yellow jackets because they did not perceive them to be a problem. The day after the attack, the Club's business manager inspected the area where the attack occurred and could not find any yellow jackets. He had the pest control company come and inspect the area also. The pest control inspector found the nest after a 15-minute search of the area and sprayed the underground nest.

The Club responded to Staats lawsuit with a motion for summary judgment. This means the Club claimed there is no legal standing for them to be sued because they did not break any laws. Since there is no reason to be sued, or a "triable fact", the court should dismiss the case. When the motion for summary judgment is granted, the court agrees there is nothing to conduct a trial over and stops the litigation process. The main reason for summary judgment is to prevent frivolous law suits from wasting the court's time and people's money generating a defense. The Club's summary judgment claimed that they didn't have to prevent the yellow jackets from attacking Staats because they did not know they were there. The Trial Court agreed with that assessment and granted the motion for summary judgment.

Staats' appeal contained many arguments. One of them was that the Club did have a duty to provide safe grounds for people to play golf. Yellow jackets are common in that area, and the Club should have made reasonable attempts to protect players. This includes setting and maintaining traps to capture yellow jackets. After a very careful analysis by the Appellate Court, they agreed with that argument. The Appellate Court ruled that the Trial Court should not have granted the motion for summary judgment and remits the case back to the lower court for a trial. They did not comment on whether or not the Club was responsible for Staats' injuries. "We hold only that golf course operators are not exempted from exercising reasonable care to protect their patrons against the foreseeable risk posed by yellow jacket nests on their premises." Appellant is awarded her costs on appeal.

Case of the Month

Deborah McLear-Gary, Plaintiff and Appellant v. Emrys Scott et al., Defendants and Respondents

Emrys Scott et al. (Scotts) extinguished Deborah McLear-Gary's (McLear-Gary) prescriptive and implied easement via a Trial Court decision using adverse possession as their argument. McLear-Gary timely appealed the decision. In California, adverse possession is when someone who does not own a parcel of land fulfills the following five items and then they take over ownership, or possession, of that parcel of land.
  1. Adverse and hostile possession (meaning the trespasser is acting against the right of the true parcel owner);
  2. Make a claim to the possession (meaning the trespasser is the sole person exercising control over the property);
  3. Open and obvious occupation of the parcel (meaning the trespasser is using the parcel as a real owner would, without hiding their occupancy);
  4. Continuous possession for a period of five years; and
  5. Timely payment of all taxes assessed against the parcel during the five-year period, verifiable by certified records of the county tax collector.
In 1972, Presa Investment Company (Presa), subdivided the Greenfield Ranch into 25 parcels, each containing a minimum of 160 acres. One of those parcels was further subdivided into 3 parcels in January 1975. McLear-Gary is the owner of the westernmost parcel, deemed parcel 1-A. Emrys and Freyja Scott own the easternmost parcel, deemed 1-C. Several other members of the Scott family own the middle lot, deemed 1-B. McLear-Gary claimed an easement that passed through 1-C until the path reached a local creek. From that creek, it became a footpath that crossed over 1-B over to 1-A. McLear-Gary would on occasion, use this path to gain access to her property.

In March 2006, the Scotts replaced an old wooden gate with a metal gate, effectively blocking McLear-Gary's access via the easement. In June, 2009, McLear-Gary filed a complaint against the Scotts in order to quiet title her claimed easement. In December 2012, McLear-Gary filed an amended complaint against the Scotts, adding their extended family. Since the extended family did not answer the amended complaint, default judgment was entered against them. The matter went to trial in October 2014. In November 2014, the Trial Court ruled in favor of the Scotts, granting them adverse possession of the easement rights McLear-Gary claimed she owned.

The Scotts presented the paperwork showing they timely paid the property tax for 1-C. However, for 1-B, they didn't pay their property taxes for 2005, 2006, 2007, and 2008 until issuing a lump sum payment in April 2011. This lump sum included all late fees and the total balance due. The Trial Court ruled that the taxes for 1-B covering the five years of possession were paid via this lump sum, and therefore they were timely paid. One of the arguments for McLear-Gary's appeal was that once payment of property taxes are delinquent, they cannot be considered to have been paid in a timely manner.

In 2010, the California Civil Code Section 325, subdivision (b) was amended via Assembly Bill No. 1684 to add the word "timely". The appellate court noted that the five-year period of the adverse possession (2006 through 2011) contains the same time frame for when Section 325 was amended. The appellate court decided to interpret this amendment to mean that one could not possess the land for 5 years and then make one lump sum payment and therefore qualify for adverse possession. The portion of the Trial Court's decision to grant McLear-Gary's prescriptive and implied easement to be extinguished by adverse position is reversed. In all other respects, the Trial Court's decision is affirmed. The parties shall bear their own costs on appeal.

California Disbars Encino Attorney Loan Modification Scam

The California State Bar has disbarred an Encino based attorney due to loan modification schemes as well as assisting others to use his name and status to perform the unauthorized practice of law. He's also charged with allowing non-attorneys to unlawfully run his practice. Attorney Andrew Weitz, 60, of Encino, was charged in three separate misconduct cases. The most recent case was opened in January 2018. The CA State Bar posted a consumer alert on Weitz's attorney profile back in 2016 and suspended his license when the first case was filed against him. That consumer alert remains on his bar profile. One way to generate a consumer alert is when an attorney is charged with committing loan modification misconduct involving 15 or more clients. Another way is when an attorney is charged with misappropriating $25,000.00 or more from their clients. Weitz is charged with collecting illegal fees from 16 clients, totaling roughly $225,000.00.

Weitz had a trial set by the CA State Bar in February 2018. Weitz made a brief appearance at that trial and then left. The CA State Bar was awarded the case by default. After a 50-day waiting period, the CA State Bar petitioned for Weitz's disbarment. Weitz has been disbarred and is no longer eligible to practice law in California. Weitz has a large list of charges against him, including the following:
  • Forming a partnership with a non-attorney
  • Lending his name to non-attorneys to operate his law firm without supervision; aiding the non-attorneys in the unauthorized practice of law and allowing staff to commit lender fraud
  • Sharing approximately $750,000.00 in legal fees with non-attorneys
  • Charging unconscionable fees from 15 clients totaling approximately $255,000.00
  • Collecting illegal fees from 16 clients - roughly $225,000.00 - for loan modification services
  • Allowing his staff to misappropriate approximately $10,000.00 from a client
  • Making multiple misrepresentations to his clients, an arbitrator, and the State Bar
  • Commingling personal funds in client trust and using it for personal expenses
  • Committing a misdemeanor by attempting to steal or remove a court file from a court
  • Engaging in the unauthorized practice of law after he was placed on involuntary inactive status
  • Charging illegal fees of approximately $4,000.00 while his license was suspended
The CA State Bar urges anyone that believes they were a victim of misconduct by an attorney to file a complaint with the CA State Bar. One can file a complaint by calling 800-843-9053. Complaint forms are available in many different languages and the phone number has live interpretation available in over 200 languages.

Upcoming Speaking Engagements

September 29 - Escrow Training Institute 



Jennifer Felten, Esq., Principal & Editor
(805) 265-1031 
Feel free to call  or email for a free consultation.

We appreciate your referrals.