Preview
JAMES A. KAESTNER, SBN 143179
LAW OFFICES OF JAMES A. KAESTNER
421 Grand Avenue, Suite A SAM MATFQ GOUM A"
South San Francisco, CA 94080
p: 650.952.6002 VA< S" rt)~h
f: 650.952.6008
Attorney for Plaintiffs,
5 ERIKA CHRISTMANN 8c GARY CURTAZ
SUPERIOR COURT OF CALIFORNIA
7
COUNTY OF SAN MATEO - UNLIMITEDJURISDICTION
8
ERIKA CHRISTMANN, CASE NUMBER: CIV 522015
)
GARY CURTAZ, )
10 ) DECLARATIONOF JAMES A. KAESTNER
Plaintiffs, IN SUPPORT OF PLAINTIFFS'PPOSITION
)) TO DEFENDANTS'OTION (PETITION)
12 )
TO VACATE BINDING ARBITRATION
) AWARD, AND IN SUPPORT OF
13 ) PLAINTIFFS'OUNTER-PETITION TO
vs. CONFIRM AWARD
14 )
)
15 Date: April 18, 2016
) Time: 9:00am
16 ALLEN L. PRICE, ) Dept.: Law and Motion
CAROL PRICE and )
17 DOES 1 - 25
Binding Arbitrator: Charles Dyer
)
18 Defendants. Date of Arbitration: December 10 & 11, 2015
19
I, JAMES A. KAESTNER, state:
20
I am attorney licensed to practice law in the State of California and the attorney for Plaintiffs
21
ERIKA CHRISTMANN and GARY CURTAZ. Ifcalled as a witness in this matter, I could and
22
would competently testify to the facts set forth below, which are personally known to me.
23
This Declaration is in support of Plaintiffs'pposition to Defendants'otion (Petition) to
24
Vacate Binding Arbitration Award, and also supports Plaintiffs'ounter-Petition To Confirm Award
25
pursuant to CCP Section 1285.2.
26
1. The Award of Arbitrator was signed on 12/16/2015 and served by mail upon all parties
27
hereto on 1/6/2016. A copy of that award is attached hereto as Exhibit 1.
Declaration ofJames A. Kaestner in SupportofPlaintiffs'ppositionto Defendants'otion Binding
(Petition) to Vacate
ofPlaintiffs'ounter-petition
Arbitration Award, and in Support to Confirm Award
Erilra Christmann, Carol Price,
Gary Curtaz vs. Allen L. Price, and DOES 1-25
Superior Court ofCalifornia,County ofSan Mateo, Unlimited Jurisdiction,
Case Number: CIV522015
1 2. The Award of Arbitrator is 19 pages long and details the stipulations entered into by the
2 parties, the facts of the case, applicable law, discussion, findings and details (damages) of
3 the Award.
4 3. The parties stipulated to the dismissal of plaintiff Gary Curtaz's cause of action (loss of
5 consortium) in exchange for a waiver of costs by defendant, which is stated in the Award at
6 page 2.
7 4. At pages 4-5 ofthe Award, the Arbitrator sets forth the law he followed concerning treatment
8 of the in propria persona respondents, Allen L. Price and Carol Price, allowing them extra
9 leeway "to present testimony in narrative form," and how he made every effort to explain
10 procedures, objectionable evidence offered (i.e.,evidence of remedial repair), lack of
11 foundation for evidence, etc., to the respondents."
12 5. At pages 8-10, the Arbitrator outlines the facts and legal analysis used in finding defendants
13 negligent, including a discussion of the plaintiffs'xpert testimony by John Rohotsky,
14 A.I.A., Architect and Licensed California Contractor.
15 6. Mr. Rohotsky's CV, submitted to the Arbitrator, is attached hereto and incorporated herein
16 as Exhibit 2.
17 7. At page 8 of the Award, the Arbitrator describes Mr. Rohotsky's testimony and expert
18 opinion that the subject stair way was at the time of the "subject incident" unsafe on two
19 theories: 1) it did not comply with the provisions ofthe applicable Building Code; 2) nor did
20 it meet the usual safety standards in regard to stair ways as there was no handrail, tread and
21 risers depth varied and there was no nosing.
22 8. Although defendants produced four (4) pages of "code", marked as Exhibit "B" to the
23 Declaration of Allen L. Price in Support of Petition To Vacate Binding Arbitration Award,
24 plaintiffs'ounsel's arbitration file contains a one page document, marked Exhibit "F" at the
25 arbitration hearing, was submitted by defendants as proof of their contention that there was
26 no Building code violation. Exhibit 3.
27 9. At page 9 of the Award, the Arbitrator describes what the defendants contentions were
28
Declaration ofJames A. Eaestnerin SzcpportofPlaintiffs'ppositionto Defendants'otion (Petition)
to Vacate Binding
Arbitration Award, and in Support
ofPlaintiffs'ounter-petitionto Confirtn Award
Erika Christmann, Carol Price,
Gary Curtaz vs. Allen L. Price, and DOES I-25
Superior Court of California,
County ofSan Mateo, Unlimited Jurisdiction,
Case zvumberzCIV 5220I5
1 regarding the applicability of certain sections of the Building code, how he had a lengthy
2 discussion with defendants and how "after being allowed an opportunity to present additional
3 evidence and law concerning the issue, the Respondents [Allen L. Price and Carol Price]
4 failed to present any admissible evidence or applicable law to support that contention". Also,
5 the respondents "offered no opposition to his [Mr. Rohotsky'] qualifications or the basis for
6 his expert opinions.
7 I declare under penalty of perjury under the laws of the State of California that the foregoing
8 is true and correct.
9 Executed this ~) 0 day of March, 2016, in South San Francisco, Cahfomia.
10
LAW OFFICE OF JAMES A. KAESTNER
12
13
J ' S A. KAESTNER, Attorney for Plaintiffs
14 CHRIS TMANNand GARY CURTAZ
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DeclarationofJames A. Kaestner in SupportofPlaintiffs'ppositionto Defendants'otion (Petitioii) to Vacate
Binding
ofPlaintiffs'ounter-petition
Arbitration Award, and in Support to Confirm Award
Erika Cltristmann,Gary Curtaz vs. Allen L Price,
Caro! Price,and DOES l-25
Superior Court of California,
County ofSan Unlimited Jurisdiction,
ItIateo, Case Itlumberf CIV 522015
Erika Christmann. Garv Curtaz vs. Allen L. Price. Carol Price. and DOES 1-25
Superior Court of California, County of San Mateo, Unlimited Jurisdiction, CIV 522015
PROOF OF SERVICE
I, JILL OROZCO, declare:
I am employed in the County of San Mateo, State of California; I am over the age of 18 years,
and not a party to the within action; my business address is LAW OFFICE OF JAMES A.
KAESTNER, 421 Grand Avenue, Suite A, South San Francisco, CA 94080.
On March 25, 2016, I caused the following document(s) to be served on the interested
parties in said cause:
8 DECLARATIONOF JAMES A. KAESTNER IN SUPPORT OF
TO DEFENDANTS'OTION (PETITION) TO VACATE BINDING
PLAINTIFFS'PPOSITION
9 ARBITRATIONAWARD, AND IN SUPPORT OF PLAINTIFFS'OUNTER-PETITION
TO CONFIRM AWARD
10
BY MAIL:Byplacing the document(s) listed above in a sealed envelope
with postage thereon fully prepaid, in the United States mail at South San
12 Francisco, California addressed as set forth below.
13 BY FACSIMILE: By transmitting via facsimile, with written confirmatior.
thereof by Defendant's counsel, and
14 by agreement the above listed document(s) to the fax number(s) set forth
below on this date before 5:00 pm.
15
BY FEDERAL EXPRESS: By causing the above listed document(s) to be
16 delivered to Federal Express for overnight service to the address(es) set forth
below.
17
BY HAND DELIVERY: By causing the above listed document(s) to be
delivered by hand to the address(es) set forth below.
19 BY E-MAIL:Bycausing the above listed document(s) to be delivered by
e-mail to the address set forth below on
20
21
Allen L. Price
Carol Price
22
2000 Vallemar Street
Moss Beach, CA 94038
23
e: alpricegothotel.corn
24
I declare under penalty ofperjury under the laws ofthe State of California, that the foregoing
25 is true and correct and that this declaration was executed on rch 25, 2016, at South San
Francisco, California.
26
27 JILL OROZCO
28
CHARLES A. DYER, Esq., state Bar ][47718
DYER & WHITE LLP
800 Oak Grove, Suite 200
Menlo Park, CA 94025
(650) 325-7000-Telephone
(650) 325-3116-F'X
cdyer8dyer-white. corn
5 ARBITRATOR
IN THE ARBITRATION OF
8 ERICA CHRISTMANN, )
)
Claimant )
) AWARD OF ARB I TRATOR
10 )
) Date: December 10 & 11, 2015
11 ALLEN PRICE and CAROL PRICE, ) Time: 9: 30 a.m.
) Neutral: Charles A. Dyer
Respondents. ) Location: Dyer & White, LLP
)
13
14 1. INTRODUCTION:
15 Before: CHARLES A. DYER, Arbitrator.
The above-named Arbitrator having been duly selected and
17 appointed in the above-entitled binding arbitration proceeding,
18 and having heard the matter, by agreement of the parties, on
19 December 10 and 11, 2015, makes this Award of Arbitrator.
20 The Claimant Erica Christmann (hereinafter "Claimant") was
21 represented by James A. Kaestner, Esq. of the Law Offices of
22 James A. Kaestner.
23 Respondents Allen L. Price and Carol Price (hereinafter
24 "Respondents" ) each appeared in pro per.
25 1. Prior to this Arbitration, all parties agreed that the
26 provisions of Code of Civil Procedure 51282.2(a)(1) for personal
27 service or by registered or certified mail were waived and the
28 Notice of Arbitration may be served by the Arbitrator by first
lAW Ol I'IC &S
OYER & WIIITI:., LLP
:1 EXHIBIT 1
AWARD OF ABBX TRATQR
1 class mail and/or e-mail.
2 2. Charles A. Dyer, an attorney admitted to the State Bar
3 of California, as agreed upon by the parties, was the Arbitrator.
4 The Arbitrator provided the attorneys representing each party
5 with an Arbitrator's Disclosure (Code of Civil Procedure
6 51281.9). No party requested amplification of the disclosure nor
7 served a notice of disqualification.
3. There was no transcription of the proceedings by a
9 Stenographic Report.ing.
10 4. All parties by mutual agreement and with the approval
11 of the Arbitrator and by their appearance at the Arbitration
12 waived all the provisions and requirements set forth in Chapter 3
13 of the Code of Civil Procedure, which includes, but is not limi-
14 ted to, disclosure time limits, time .requirements for notice of
15 the hearing, further time limit requirements, mailing by regis-
16 tered or certified mail, exchange of list of witnesses, exchange
17 of documentary evidence, etc.
18 5. A pre-arbitration conference was held on November 3,
19 2015. The Claimants Erica Christmann and Gary Curtaz were repre-
20 sented by James A. Kaestner, Esq. of the Law Offices of James A.
21 Kaestner. Respondents Allen L. Price and Carol Price each ap-
22 peared in pro per. At that time a written Stipulation was en-
23 tered into whereby the action of Claimant Gary Curtaz was dis-
24 missed in consideration for a waiver of costs. Other stipu-
25 lations were agreed upon between the parties:
26 1. Stipulation of Facts;
27 2. Stipulation Re: Admissibility of Deposition Tran-
28 scripts in ArbiLration;
LnV< OFFICES
DYLR 8 WtllTE, LLP —2—
AWARD OF ARB ITUTOR
3. Stipulation Re: Use of Discovery Requests and Dis-
2 covery Responses at Arbitration; and
3 4. Stipulation Re: Authenticity of Records and Use of
Copies at Arbitration.
5. Oral and documentary evidence was introduced on behalf
6 of the respective parties and the cause was argued and submitted
7 for decision. The parties agreed that they had provided all the
8 evidence they wished to submit at the close of evidence.
9 6. The Arbitration closed on December 11, 2015.
10 7. The Award includes a determination of all the ques-
11 tions submitted to the Arbitrator the decision of which is neces-
12 sary in order to determine the controversy.
13 8. The Arbitrator,'having considered the arbitration
14 briefs submitted by each party, testimony of all witnesses, the
15 exhibits admitted into evidence, the summations/closing arguments
16 and being fully advised, finds, and awards as follows:
17 2. WITNESSES:
1. Erika Christmann: Claimant
19 2. Gary Curtaz: Claimant.'s spouse
20 3. Carol Price: Respondent
21 4. Allen L. Price: Respondent
22 5. John Rohotsky, A.I.A.: Claimant's expert construction
6. John Lavorgna, N.D.: Claimant's expert medical
7. James L. Pfeifer: by deposition, concret.e contractor
25 3. EXHIBITS ADMITTED INTO EVIDENCE:
26 The Claimant's Exhibits 1 to 26, 28 to 34, 45 to 46, 51 to
27 55, 58 to 61 and 63 to 72 were admitted i nto evidence.
28 The Re pondenLs'xhj bits A to H, J and L to N were
LIOW UFFICEE
DYER & WIIITE, LLP —3—
AWARD OF ARBITRATOR
1 admitted into evidence.
All the Exhibits admitted into evidence were considered by
3 the Arbitrator in making his decision concerning the Award.
4 4. RESPONDENTS APPEARING PROPRIA PERSONA:
The Respondents in this matter chose i o appear in propria
6 persona ("pro per"). "They are defending themselves since legal
7 representation is to [sic] expensive for them." (Respondents'
Arbitration Brief, p. 1, %2.) The Respondents'ecision posed
9 somewhat of a dilemma for the Arbitrator.
10 The law is clear that Respondents were not entitled to
11 special treatment or greater leniency because they were appearing
12 in pro per. Under the law, a party may choose to act as his or
13 her own attorney. (Paradise v. Nowlin (1948) 86 Cal. App. 2d
14 897, 898. ) "[S] uch a party is to be treated like any other party
15 and is entitled to the same, but no greater consideration than
16 other litigants and attorneys. [Citation.]" (Barton v. New
17 United Motor. Manufacturing, Inc. (1996) 43 Cal. App. 4th 1200,
18 1210; Nwosu v. Uba (2004) 122 Cal.App. 4th 1229, 1246 —1247. )
"A doctrine generally requiring or permitting exceptional
20 treatment of parties who represent themselves would lead to a
21 quagmire in the trial courts, and would be unfair t.o the other
22 parties to litigation." (Kobayashi v. Superior Court (2009) 175
23 Cal.App.4th 536, 543.)
The Arbitrator applied the basic propositions set forth in
25 Garnet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 —1285, by
26 acknowledging that the Respondents did not have an attorney's
27 level of knowledge about the legal system and made every effort
28 Lo explain procedures, objectionable evidence offered (i.e.,
JiVil Of'I ICES
I
5 Wti .'c. LLP
)van —4—
AWAHD OF ARB I TRATOR
evidence re remedial repair), lack of foundation for evidence,
2 etc. to the Respondents. The Arbitrator monii.ored the proceeding
3 to ensure the Respondents were not inadvertently misled and took
4 special care to ensure that. rulings which could have been ez-
5 pressed in legal shorthand were clear and understandable by a
6 layperson. The Arbitrator also allowed the Respondent.s to
7 present direct testimony in narrative form.
8 However, in making decisions concerning this Award, the
9 Arbitrator necessarily disregarded some of the Respondents'm-
10 plied defenses which were perfunctorily asserted without. develop-
11 ment. (See Opdyk v. Ca1iforni a Horse Racing Bd. (1995) 34
12 Cal.App. 4th 1826, 1830 —1831, fn. 4. )
13 5. PRELIMINARY FACTS:
This is an unfortunate premises liability case that arises
15 from a fall down a set of outdoor stairs ("subject stairway")
16 that occurred on September 24, 2012, at. an ocean-view rental
17 cottage located at 2000 Vallemar Street, Moss Beach, California
18 ("subject property") .
19 The Respondents were the owners and managers of the sub-
20 ject property. The Respondents are husband and wife. They have
21 owned the property since 2006 and have rented it on a nightly or
22 weekly basis on many occasions since their ownership commenced.
23 The subject property had been rented by a friend of the
24 Claimant from Friday, September 21, 2012, through Monday, Septem-
25 ber 24, 2012, for the Claimant's wedding and reception.
Claimant and Gary Curtaz were married at. the property on
27 Saturday, Sepi ember 22, 2012.
On the morning of September 24, 2012, as the Claimant was
(AW OFrIcEs
LLP
DYER & W|(ITE,
AWARD OF ARB I T RATOR
preparing to vacate the subject property, she was injured when
2 she fell on the subject stairway that led to the ocean view patio
3 where the wedding ceremony and reception had been held two days
4 earlier.
5 6. DESCRIPTION OF THE PREMISES AND AREA OF SUBJECT INCIDENT:
6 The subject property was advertised by the Respondents and
7 rented for vacation use, events or romantic getaways. The Re-
8 spondents rented it. for around one hundred fifty (150) days a
9 year. There is only one path of travel directly from the public
10 street and cul —de —sac to the ocean view patio where the wedding
11 took place. This is a gravel path that served as a driveway and
12 walkway leading down the side yard of the subject property to a
13 wooden fence and gate. The subject stairway was immediately
14 beyond the gate opening consisting of five descending steps
15 which led to a wide landing.
16 7 . SOME APPLICABLE LAW:
17 Everyone is responsible for an injury occasioned to
18 another by his or her want. of ordinary care or skill in the
19 management of his or her property, except so far as the latter
20 has by want of ordinary care, brought the injury upon himself or
21 herself. (Civil Code 51714(a).)
22 "It is now well established that California law requires
23 landowners to maintain land in their possession and control in a
24 reasonably safe condition." (Ann Id. v. Pacific Plaza Shopping
25 Center (1993) 6 Cal. 4th 666, 674. ) "The proper test to be ap-
26 plied to the liability of the possessor of land is whether
27 in the management of his property he has acted as a reasonable
28 man in view of the probability of injury to others
lAVilOl I
3
IC1
'YEA 5 WHITE,
LI P —6-
AWARD OF ARB I T RAT OR
1 (Row1and v. Christian (1968) 69 Cal. 2d 108, 119. )
The owner of property is obligated to exercise only ordi-
3 nary care in keeping the premises in a safe condition; he is not
4 an insurer of the safety of his invitees. (Owen v. Beauchamp
5 (1944) 66 Cal.App. 2d 750, 752.)
"Although the obviousness of a danger may obviate the duty
7 to warn of its existence, if it is foreseeable that the danger
8 may cause injury despite the fact that it is obvious (e.g., when
9 necessity requires person to encounter it.), there may be a duty
10 to remedy the danger, and the breach of that duty may in turn
11 form the basis for liability[. ]" (Martinez v. Chippewa Enter—
12 prises, Znc. (2004) 121 Cal.App. 4th 1179, 1184, cit.ing Osborn v.
13 Mission Beady Mix (1990) 224 Cal.App. 3d 104, 122.
"Contributory negligence is conduct on the part of the
15 plaintiff which falls below the standard to which he should con-
16 form for his own protection, and which is a legally cont.ributing
17 cause cooperating with the negligence of the defendant in bring-
18 ing about the plaintiff's harm." (Ii v. 1'e22ow Cab Co. (1975) 13
19 Cal.3d 804, 809.)
20 Contributory negligence is a defense that reduces the
21 tot.al amount of the plaintiff's damages by the proportion or
22 percentage of negligence attributable to the plaintiff. (Drust
23 v. Drust (1980) 113 Cal. App. 3d 1, 6, fn. 1. )
24 S. DISCUSSION:
25 1. Did Respondents own, lease, occupy and/or control the
26 subject property'7
Yes.
The Respondents admitted in the Stipulation of Facts that
W OfFICES
)"FH & WHITE, LLP —16—
AWARD OF ARB I TRATOR
1 was transported by ambulance to the Kaiser Hospital Emergency
2 Room where she underwent initial medical treatment. She then
3 embarked on a course of lengthy medical i reatment with numerous
4 treatment visits and three surgeries with attendant, though
5 short, hospitalizations. She was unable to engage in her usual
6 employment, was substantially limited in her activit.ies of daily
7 life and experienced a general loss of enjoyment of life includ-
8 ing gardening, bicycling and playing drums. Approximately three
9 {3) years and almost three (3) months have elapsed since the date
10 of the subject incident.
11 The Arbitrator in determining the amount of past noneconomic
12 damages employed his impartial conscience and j udgment to act
13 reasonably and in harmony with the evidence. (See, Beagle v.
14 Vasold {1966) 65 Cal. 2d 166, 181. ) The Arbitrator finds that
15 the past noneconomic damages are $ 110,000.00.
16 15. FVTURE NONECONOMIC LOSS:
17 Claimant may recover damages for future noneconomic damages
18 based on proof, by a preponderance of the evidence, that such
19 pain and suffering is reasonably certain to be incurred in the
20 future from the injuries sustained. (See Civil Code 53283;
21 Oli vei ra v. Parren (1938) 24 Cal. App. 2d 712, 713 —714. ) The
22 future noneconomic damages include the apprehension of the future
23 consequences of the injury.
24 The Arbitrator took judicial notice of the standard mortal-
25 ity table included in the standard jury instructions to establish
26 Claimant' life expectancy. (Ri sley v. tenwell (1954) 129
27 Cal.App.2d 608, 651-652; CACI, Life Expectancy Table.)
28 The Claimant' birthday is Nay 27, 1949. At this time she
UIW OFFICES
DYER 8I WIRYC, LLP —17-
AWARD OF ARBITRATOR
1 is sixty-six (66) years old. Her life expectancy is eighteen an
2 one hal f (18. 5) additional years. The Claimant will endure a
3 further surgery. She will live those future years with a signi-
4 ficant residual limitation in the use of her left wrist. That
5 physical limitation will be accompanied with pain and discomfort.
6 She will be limited in her activities of daily life and will
7 experience a general loss of enjoyment of life.
8 The Arbitrator, again employed his impartial conscience and
9 judgment to act reasonably and in harmony with the evidence and
10 therefore, finds that the future noneconomic damages, reduced to
11 present day value, are $ 75,000.00.
12 16. PREVAILING PARTY AND DETAILS OP AWARD:
13 It is the decision of the Arbitrator that the prevailing
14 party in this Arbitration is:
15 The Claimant.
16 1. The negligence of Respondents was a substantial factor
17 in the legal cause of harm to the Claimant.
18 2. Claimant suffered harm as a legal cause of the fall of
19 September 24, 2012, in the following sums:
20 a. Past medical expenses.... $ 104F105.89
21 b. Past loss of earnings.... 90,541.25
22 c. Future medical expenses.. $ 50,000.00
23 d. Future loss of earnings.. I%one Claimed
e. Past noneconomic loss. $ 110,000.00
25 f. Future noneconomic loss.... $ 75, 000. 00
26 3. Claimant suffered harm as a legal cause of the negli-
27 gence of Lhe Respondents in the total sum of $ 429, 647. 14.
28 4. Claimant' contributory negligence was a subsLanLial
LrCV OFFICES
Dvr.rr & WrrrtE, LLP —18—
AWARD OF ARB I TRATOR
1 faci or in the legal cause of the harm she suffered.
2 5. The percentage of responsibility for Claimant's harm is
3 assigned as follows:
Respondents: Sixty percent (60-".)
5 Claimant: Forty percent (40-:)
6 6. Each party to bear its own fees and costs (Code of Civil
7 Procedure Section 1284. 2) unless the parties have an agreement
8 that provides for a different responsibility.
9 7. This Award of Arbitrator is in full settlement of all
10 claims submitte
Preview
JAMES A. KAESTNER, SBN 143179 LAW OFFICES OF JAMES A. KAESTNER 421 Grand Avenue, Suite A SAM MATFQ GOUM A" South San Francisco, CA 94080 p: 650.952.6002 VA< S" rt)~h f: 650.952.6008 Attorney for Plaintiffs, 5 ERIKA CHRISTMANN 8c GARY CURTAZ SUPERIOR COURT OF CALIFORNIA 7 COUNTY OF SAN MATEO - UNLIMITEDJURISDICTION 8 ERIKA CHRISTMANN, CASE NUMBER: CIV 522015 ) GARY CURTAZ, ) 10 ) DECLARATIONOF JAMES A. KAESTNER Plaintiffs, IN SUPPORT OF PLAINTIFFS'PPOSITION )) TO DEFENDANTS'OTION (PETITION) 12 ) TO VACATE BINDING ARBITRATION ) AWARD, AND IN SUPPORT OF 13 ) PLAINTIFFS'OUNTER-PETITION TO vs. CONFIRM AWARD 14 ) ) 15 Date: April 18, 2016 ) Time: 9:00am 16 ALLEN L. PRICE, ) Dept.: Law and Motion CAROL PRICE and ) 17 DOES 1 - 25 Binding Arbitrator: Charles Dyer ) 18 Defendants. Date of Arbitration: December 10 & 11, 2015 19 I, JAMES A. KAESTNER, state: 20 I am attorney licensed to practice law in the State of California and the attorney for Plaintiffs 21 ERIKA CHRISTMANN and GARY CURTAZ. Ifcalled as a witness in this matter, I could and 22 would competently testify to the facts set forth below, which are personally known to me. 23 This Declaration is in support of Plaintiffs'pposition to Defendants'otion (Petition) to 24 Vacate Binding Arbitration Award, and also supports Plaintiffs'ounter-Petition To Confirm Award 25 pursuant to CCP Section 1285.2. 26 1. The Award of Arbitrator was signed on 12/16/2015 and served by mail upon all parties 27 hereto on 1/6/2016. A copy of that award is attached hereto as Exhibit 1. Declaration ofJames A. Kaestner in SupportofPlaintiffs'ppositionto Defendants'otion Binding (Petition) to Vacate ofPlaintiffs'ounter-petition Arbitration Award, and in Support to Confirm Award Erilra Christmann, Carol Price, Gary Curtaz vs. Allen L. Price, and DOES 1-25 Superior Court ofCalifornia,County ofSan Mateo, Unlimited Jurisdiction, Case Number: CIV522015 1 2. The Award of Arbitrator is 19 pages long and details the stipulations entered into by the 2 parties, the facts of the case, applicable law, discussion, findings and details (damages) of 3 the Award. 4 3. The parties stipulated to the dismissal of plaintiff Gary Curtaz's cause of action (loss of 5 consortium) in exchange for a waiver of costs by defendant, which is stated in the Award at 6 page 2. 7 4. At pages 4-5 ofthe Award, the Arbitrator sets forth the law he followed concerning treatment 8 of the in propria persona respondents, Allen L. Price and Carol Price, allowing them extra 9 leeway "to present testimony in narrative form," and how he made every effort to explain 10 procedures, objectionable evidence offered (i.e.,evidence of remedial repair), lack of 11 foundation for evidence, etc., to the respondents." 12 5. At pages 8-10, the Arbitrator outlines the facts and legal analysis used in finding defendants 13 negligent, including a discussion of the plaintiffs'xpert testimony by John Rohotsky, 14 A.I.A., Architect and Licensed California Contractor. 15 6. Mr. Rohotsky's CV, submitted to the Arbitrator, is attached hereto and incorporated herein 16 as Exhibit 2. 17 7. At page 8 of the Award, the Arbitrator describes Mr. Rohotsky's testimony and expert 18 opinion that the subject stair way was at the time of the "subject incident" unsafe on two 19 theories: 1) it did not comply with the provisions ofthe applicable Building Code; 2) nor did 20 it meet the usual safety standards in regard to stair ways as there was no handrail, tread and 21 risers depth varied and there was no nosing. 22 8. Although defendants produced four (4) pages of "code", marked as Exhibit "B" to the 23 Declaration of Allen L. Price in Support of Petition To Vacate Binding Arbitration Award, 24 plaintiffs'ounsel's arbitration file contains a one page document, marked Exhibit "F" at the 25 arbitration hearing, was submitted by defendants as proof of their contention that there was 26 no Building code violation. Exhibit 3. 27 9. At page 9 of the Award, the Arbitrator describes what the defendants contentions were 28 Declaration ofJames A. Eaestnerin SzcpportofPlaintiffs'ppositionto Defendants'otion (Petition) to Vacate Binding Arbitration Award, and in Support ofPlaintiffs'ounter-petitionto Confirtn Award Erika Christmann, Carol Price, Gary Curtaz vs. Allen L. Price, and DOES I-25 Superior Court of California, County ofSan Mateo, Unlimited Jurisdiction, Case zvumberzCIV 5220I5 1 regarding the applicability of certain sections of the Building code, how he had a lengthy 2 discussion with defendants and how "after being allowed an opportunity to present additional 3 evidence and law concerning the issue, the Respondents [Allen L. Price and Carol Price] 4 failed to present any admissible evidence or applicable law to support that contention". Also, 5 the respondents "offered no opposition to his [Mr. Rohotsky'] qualifications or the basis for 6 his expert opinions. 7 I declare under penalty of perjury under the laws of the State of California that the foregoing 8 is true and correct. 9 Executed this ~) 0 day of March, 2016, in South San Francisco, Cahfomia. 10 LAW OFFICE OF JAMES A. KAESTNER 12 13 J ' S A. KAESTNER, Attorney for Plaintiffs 14 CHRIS TMANNand GARY CURTAZ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DeclarationofJames A. Kaestner in SupportofPlaintiffs'ppositionto Defendants'otion (Petitioii) to Vacate Binding ofPlaintiffs'ounter-petition Arbitration Award, and in Support to Confirm Award Erika Cltristmann,Gary Curtaz vs. Allen L Price, Caro! Price,and DOES l-25 Superior Court of California, County ofSan Unlimited Jurisdiction, ItIateo, Case Itlumberf CIV 522015 Erika Christmann. Garv Curtaz vs. Allen L. Price. Carol Price. and DOES 1-25 Superior Court of California, County of San Mateo, Unlimited Jurisdiction, CIV 522015 PROOF OF SERVICE I, JILL OROZCO, declare: I am employed in the County of San Mateo, State of California; I am over the age of 18 years, and not a party to the within action; my business address is LAW OFFICE OF JAMES A. KAESTNER, 421 Grand Avenue, Suite A, South San Francisco, CA 94080. On March 25, 2016, I caused the following document(s) to be served on the interested parties in said cause: 8 DECLARATIONOF JAMES A. KAESTNER IN SUPPORT OF TO DEFENDANTS'OTION (PETITION) TO VACATE BINDING PLAINTIFFS'PPOSITION 9 ARBITRATIONAWARD, AND IN SUPPORT OF PLAINTIFFS'OUNTER-PETITION TO CONFIRM AWARD 10 BY MAIL:Byplacing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at South San 12 Francisco, California addressed as set forth below. 13 BY FACSIMILE: By transmitting via facsimile, with written confirmatior. thereof by Defendant's counsel, and 14 by agreement the above listed document(s) to the fax number(s) set forth below on this date before 5:00 pm. 15 BY FEDERAL EXPRESS: By causing the above listed document(s) to be 16 delivered to Federal Express for overnight service to the address(es) set forth below. 17 BY HAND DELIVERY: By causing the above listed document(s) to be delivered by hand to the address(es) set forth below. 19 BY E-MAIL:Bycausing the above listed document(s) to be delivered by e-mail to the address set forth below on 20 21 Allen L. Price Carol Price 22 2000 Vallemar Street Moss Beach, CA 94038 23 e: alpricegothotel.corn 24 I declare under penalty ofperjury under the laws ofthe State of California, that the foregoing 25 is true and correct and that this declaration was executed on rch 25, 2016, at South San Francisco, California. 26 27 JILL OROZCO 28 CHARLES A. DYER, Esq., state Bar ][47718 DYER & WHITE LLP 800 Oak Grove, Suite 200 Menlo Park, CA 94025 (650) 325-7000-Telephone (650) 325-3116-F'X cdyer8dyer-white. corn 5 ARBITRATOR IN THE ARBITRATION OF 8 ERICA CHRISTMANN, ) ) Claimant ) ) AWARD OF ARB I TRATOR 10 ) ) Date: December 10 & 11, 2015 11 ALLEN PRICE and CAROL PRICE, ) Time: 9: 30 a.m. ) Neutral: Charles A. Dyer Respondents. ) Location: Dyer & White, LLP ) 13 14 1. INTRODUCTION: 15 Before: CHARLES A. DYER, Arbitrator. The above-named Arbitrator having been duly selected and 17 appointed in the above-entitled binding arbitration proceeding, 18 and having heard the matter, by agreement of the parties, on 19 December 10 and 11, 2015, makes this Award of Arbitrator. 20 The Claimant Erica Christmann (hereinafter "Claimant") was 21 represented by James A. Kaestner, Esq. of the Law Offices of 22 James A. Kaestner. 23 Respondents Allen L. Price and Carol Price (hereinafter 24 "Respondents" ) each appeared in pro per. 25 1. Prior to this Arbitration, all parties agreed that the 26 provisions of Code of Civil Procedure 51282.2(a)(1) for personal 27 service or by registered or certified mail were waived and the 28 Notice of Arbitration may be served by the Arbitrator by first lAW Ol I'IC &S OYER & WIIITI:., LLP :1 EXHIBIT 1 AWARD OF ABBX TRATQR 1 class mail and/or e-mail. 2 2. Charles A. Dyer, an attorney admitted to the State Bar 3 of California, as agreed upon by the parties, was the Arbitrator. 4 The Arbitrator provided the attorneys representing each party 5 with an Arbitrator's Disclosure (Code of Civil Procedure 6 51281.9). No party requested amplification of the disclosure nor 7 served a notice of disqualification. 3. There was no transcription of the proceedings by a 9 Stenographic Report.ing. 10 4. All parties by mutual agreement and with the approval 11 of the Arbitrator and by their appearance at the Arbitration 12 waived all the provisions and requirements set forth in Chapter 3 13 of the Code of Civil Procedure, which includes, but is not limi- 14 ted to, disclosure time limits, time .requirements for notice of 15 the hearing, further time limit requirements, mailing by regis- 16 tered or certified mail, exchange of list of witnesses, exchange 17 of documentary evidence, etc. 18 5. A pre-arbitration conference was held on November 3, 19 2015. The Claimants Erica Christmann and Gary Curtaz were repre- 20 sented by James A. Kaestner, Esq. of the Law Offices of James A. 21 Kaestner. Respondents Allen L. Price and Carol Price each ap- 22 peared in pro per. At that time a written Stipulation was en- 23 tered into whereby the action of Claimant Gary Curtaz was dis- 24 missed in consideration for a waiver of costs. Other stipu- 25 lations were agreed upon between the parties: 26 1. Stipulation of Facts; 27 2. Stipulation Re: Admissibility of Deposition Tran- 28 scripts in ArbiLration; LnV< OFFICES DYLR 8 WtllTE, LLP —2— AWARD OF ARB ITUTOR 3. Stipulation Re: Use of Discovery Requests and Dis- 2 covery Responses at Arbitration; and 3 4. Stipulation Re: Authenticity of Records and Use of Copies at Arbitration. 5. Oral and documentary evidence was introduced on behalf 6 of the respective parties and the cause was argued and submitted 7 for decision. The parties agreed that they had provided all the 8 evidence they wished to submit at the close of evidence. 9 6. The Arbitration closed on December 11, 2015. 10 7. The Award includes a determination of all the ques- 11 tions submitted to the Arbitrator the decision of which is neces- 12 sary in order to determine the controversy. 13 8. The Arbitrator,'having considered the arbitration 14 briefs submitted by each party, testimony of all witnesses, the 15 exhibits admitted into evidence, the summations/closing arguments 16 and being fully advised, finds, and awards as follows: 17 2. WITNESSES: 1. Erika Christmann: Claimant 19 2. Gary Curtaz: Claimant.'s spouse 20 3. Carol Price: Respondent 21 4. Allen L. Price: Respondent 22 5. John Rohotsky, A.I.A.: Claimant's expert construction 6. John Lavorgna, N.D.: Claimant's expert medical 7. James L. Pfeifer: by deposition, concret.e contractor 25 3. EXHIBITS ADMITTED INTO EVIDENCE: 26 The Claimant's Exhibits 1 to 26, 28 to 34, 45 to 46, 51 to 27 55, 58 to 61 and 63 to 72 were admitted i nto evidence. 28 The Re pondenLs'xhj bits A to H, J and L to N were LIOW UFFICEE DYER & WIIITE, LLP —3— AWARD OF ARBITRATOR 1 admitted into evidence. All the Exhibits admitted into evidence were considered by 3 the Arbitrator in making his decision concerning the Award. 4 4. RESPONDENTS APPEARING PROPRIA PERSONA: The Respondents in this matter chose i o appear in propria 6 persona ("pro per"). "They are defending themselves since legal 7 representation is to [sic] expensive for them." (Respondents' Arbitration Brief, p. 1, %2.) The Respondents'ecision posed 9 somewhat of a dilemma for the Arbitrator. 10 The law is clear that Respondents were not entitled to 11 special treatment or greater leniency because they were appearing 12 in pro per. Under the law, a party may choose to act as his or 13 her own attorney. (Paradise v. Nowlin (1948) 86 Cal. App. 2d 14 897, 898. ) "[S] uch a party is to be treated like any other party 15 and is entitled to the same, but no greater consideration than 16 other litigants and attorneys. [Citation.]" (Barton v. New 17 United Motor. Manufacturing, Inc. (1996) 43 Cal. App. 4th 1200, 18 1210; Nwosu v. Uba (2004) 122 Cal.App. 4th 1229, 1246 —1247. ) "A doctrine generally requiring or permitting exceptional 20 treatment of parties who represent themselves would lead to a 21 quagmire in the trial courts, and would be unfair t.o the other 22 parties to litigation." (Kobayashi v. Superior Court (2009) 175 23 Cal.App.4th 536, 543.) The Arbitrator applied the basic propositions set forth in 25 Garnet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 —1285, by 26 acknowledging that the Respondents did not have an attorney's 27 level of knowledge about the legal system and made every effort 28 Lo explain procedures, objectionable evidence offered (i.e., JiVil Of'I ICES I 5 Wti .'c. LLP )van —4— AWAHD OF ARB I TRATOR evidence re remedial repair), lack of foundation for evidence, 2 etc. to the Respondents. The Arbitrator monii.ored the proceeding 3 to ensure the Respondents were not inadvertently misled and took 4 special care to ensure that. rulings which could have been ez- 5 pressed in legal shorthand were clear and understandable by a 6 layperson. The Arbitrator also allowed the Respondent.s to 7 present direct testimony in narrative form. 8 However, in making decisions concerning this Award, the 9 Arbitrator necessarily disregarded some of the Respondents'm- 10 plied defenses which were perfunctorily asserted without. develop- 11 ment. (See Opdyk v. Ca1iforni a Horse Racing Bd. (1995) 34 12 Cal.App. 4th 1826, 1830 —1831, fn. 4. ) 13 5. PRELIMINARY FACTS: This is an unfortunate premises liability case that arises 15 from a fall down a set of outdoor stairs ("subject stairway") 16 that occurred on September 24, 2012, at. an ocean-view rental 17 cottage located at 2000 Vallemar Street, Moss Beach, California 18 ("subject property") . 19 The Respondents were the owners and managers of the sub- 20 ject property. The Respondents are husband and wife. They have 21 owned the property since 2006 and have rented it on a nightly or 22 weekly basis on many occasions since their ownership commenced. 23 The subject property had been rented by a friend of the 24 Claimant from Friday, September 21, 2012, through Monday, Septem- 25 ber 24, 2012, for the Claimant's wedding and reception. Claimant and Gary Curtaz were married at. the property on 27 Saturday, Sepi ember 22, 2012. On the morning of September 24, 2012, as the Claimant was (AW OFrIcEs LLP DYER & W|(ITE, AWARD OF ARB I T RATOR preparing to vacate the subject property, she was injured when 2 she fell on the subject stairway that led to the ocean view patio 3 where the wedding ceremony and reception had been held two days 4 earlier. 5 6. DESCRIPTION OF THE PREMISES AND AREA OF SUBJECT INCIDENT: 6 The subject property was advertised by the Respondents and 7 rented for vacation use, events or romantic getaways. The Re- 8 spondents rented it. for around one hundred fifty (150) days a 9 year. There is only one path of travel directly from the public 10 street and cul —de —sac to the ocean view patio where the wedding 11 took place. This is a gravel path that served as a driveway and 12 walkway leading down the side yard of the subject property to a 13 wooden fence and gate. The subject stairway was immediately 14 beyond the gate opening consisting of five descending steps 15 which led to a wide landing. 16 7 . SOME APPLICABLE LAW: 17 Everyone is responsible for an injury occasioned to 18 another by his or her want. of ordinary care or skill in the 19 management of his or her property, except so far as the latter 20 has by want of ordinary care, brought the injury upon himself or 21 herself. (Civil Code 51714(a).) 22 "It is now well established that California law requires 23 landowners to maintain land in their possession and control in a 24 reasonably safe condition." (Ann Id. v. Pacific Plaza Shopping 25 Center (1993) 6 Cal. 4th 666, 674. ) "The proper test to be ap- 26 plied to the liability of the possessor of land is whether 27 in the management of his property he has acted as a reasonable 28 man in view of the probability of injury to others lAVilOl I 3 IC1 'YEA 5 WHITE, LI P —6- AWARD OF ARB I T RAT OR 1 (Row1and v. Christian (1968) 69 Cal. 2d 108, 119. ) The owner of property is obligated to exercise only ordi- 3 nary care in keeping the premises in a safe condition; he is not 4 an insurer of the safety of his invitees. (Owen v. Beauchamp 5 (1944) 66 Cal.App. 2d 750, 752.) "Although the obviousness of a danger may obviate the duty 7 to warn of its existence, if it is foreseeable that the danger 8 may cause injury despite the fact that it is obvious (e.g., when 9 necessity requires person to encounter it.), there may be a duty 10 to remedy the danger, and the breach of that duty may in turn 11 form the basis for liability[. ]" (Martinez v. Chippewa Enter— 12 prises, Znc. (2004) 121 Cal.App. 4th 1179, 1184, cit.ing Osborn v. 13 Mission Beady Mix (1990) 224 Cal.App. 3d 104, 122. "Contributory negligence is conduct on the part of the 15 plaintiff which falls below the standard to which he should con- 16 form for his own protection, and which is a legally cont.ributing 17 cause cooperating with the negligence of the defendant in bring- 18 ing about the plaintiff's harm." (Ii v. 1'e22ow Cab Co. (1975) 13 19 Cal.3d 804, 809.) 20 Contributory negligence is a defense that reduces the 21 tot.al amount of the plaintiff's damages by the proportion or 22 percentage of negligence attributable to the plaintiff. (Drust 23 v. Drust (1980) 113 Cal. App. 3d 1, 6, fn. 1. ) 24 S. DISCUSSION: 25 1. Did Respondents own, lease, occupy and/or control the 26 subject property'7 Yes. The Respondents admitted in the Stipulation of Facts that W OfFICES )"FH & WHITE, LLP —16— AWARD OF ARB I TRATOR 1 was transported by ambulance to the Kaiser Hospital Emergency 2 Room where she underwent initial medical treatment. She then 3 embarked on a course of lengthy medical i reatment with numerous 4 treatment visits and three surgeries with attendant, though 5 short, hospitalizations. She was unable to engage in her usual 6 employment, was substantially limited in her activit.ies of daily 7 life and experienced a general loss of enjoyment of life includ- 8 ing gardening, bicycling and playing drums. Approximately three 9 {3) years and almost three (3) months have elapsed since the date 10 of the subject incident. 11 The Arbitrator in determining the amount of past noneconomic 12 damages employed his impartial conscience and j udgment to act 13 reasonably and in harmony with the evidence. (See, Beagle v. 14 Vasold {1966) 65 Cal. 2d 166, 181. ) The Arbitrator finds that 15 the past noneconomic damages are $ 110,000.00. 16 15. FVTURE NONECONOMIC LOSS: 17 Claimant may recover damages for future noneconomic damages 18 based on proof, by a preponderance of the evidence, that such 19 pain and suffering is reasonably certain to be incurred in the 20 future from the injuries sustained. (See Civil Code 53283; 21 Oli vei ra v. Parren (1938) 24 Cal. App. 2d 712, 713 —714. ) The 22 future noneconomic damages include the apprehension of the future 23 consequences of the injury. 24 The Arbitrator took judicial notice of the standard mortal- 25 ity table included in the standard jury instructions to establish 26 Claimant' life expectancy. (Ri sley v. tenwell (1954) 129 27 Cal.App.2d 608, 651-652; CACI, Life Expectancy Table.) 28 The Claimant' birthday is Nay 27, 1949. At this time she UIW OFFICES DYER 8I WIRYC, LLP —17- AWARD OF ARBITRATOR 1 is sixty-six (66) years old. Her life expectancy is eighteen an 2 one hal f (18. 5) additional years. The Claimant will endure a 3 further surgery. She will live those future years with a signi- 4 ficant residual limitation in the use of her left wrist. That 5 physical limitation will be accompanied with pain and discomfort. 6 She will be limited in her activities of daily life and will 7 experience a general loss of enjoyment of life. 8 The Arbitrator, again employed his impartial conscience and 9 judgment to act reasonably and in harmony with the evidence and 10 therefore, finds that the future noneconomic damages, reduced to 11 present day value, are $ 75,000.00. 12 16. PREVAILING PARTY AND DETAILS OP AWARD: 13 It is the decision of the Arbitrator that the prevailing 14 party in this Arbitration is: 15 The Claimant. 16 1. The negligence of Respondents was a substantial factor 17 in the legal cause of harm to the Claimant. 18 2. Claimant suffered harm as a legal cause of the fall of 19 September 24, 2012, in the following sums: 20 a. Past medical expenses.... $ 104F105.89 21 b. Past loss of earnings.... 90,541.25 22 c. Future medical expenses.. $ 50,000.00 23 d. Future loss of earnings.. I%one Claimed e. Past noneconomic loss. $ 110,000.00 25 f. Future noneconomic loss.... $ 75, 000. 00 26 3. Claimant suffered harm as a legal cause of the negli- 27 gence of Lhe Respondents in the total sum of $ 429, 647. 14. 28 4. Claimant' contributory negligence was a subsLanLial LrCV OFFICES Dvr.rr & WrrrtE, LLP —18— AWARD OF ARB I TRATOR 1 faci or in the legal cause of the harm she suffered. 2 5. The percentage of responsibility for Claimant's harm is 3 assigned as follows: Respondents: Sixty percent (60-".) 5 Claimant: Forty percent (40-:) 6 6. Each party to bear its own fees and costs (Code of Civil 7 Procedure Section 1284. 2) unless the parties have an agreement 8 that provides for a different responsibility. 9 7. This Award of Arbitrator is in full settlement of all 10 claims submitte