Metropolitan News-Enterprise


Monday, September 26, 2016


Page 1


Appeals Court Revives Wrongful Death Case, Says Dismissal Unwarranted Over Late-Filed Papers


By a MetNews Staff Writer


Los Angeles Superior Court Judge Elizabeth Feffer abused her discretion by imposing what amounted to terminating sanctions on a plaintiff who filed late opposition to some motions, the Court of Appeal for this district ruled Friday.

Attorneys for the parents of 15-year-old twins killed in a 2010 bedroom fire, apparently caused by a candle in the bedroom, engaged in conduct that “was unacceptable and disruptive of the orderly process of the court and a burden to” the defendant, Justice Sandy Kriegler wrote in an unpublished opinion for Div. Five.

But there was no reason to throw the plaintiffs out of court “based solely on their untimely opposition to motions in limine, when one of the motions in limine was itself filed late, there was no prejudice shown, and effective lesser sanctions were available,” he said.

The twins, Erick and Edward Marroquin, died inside a two-bedroom apartment in South Los Angeles, the Los Angeles Times reported at the time. Their mother, Ismenia Platero, escaped with three younger children.

Platero and her estranged husband, Ronald Marroquin, sued multiple defendants, including BRK Brands, Inc., manufacturer and distributor of the smoke detector in the boys’ bedroom, which the plaintiffs alleged was defective. BRK argued that the alarm might have been disconnected or improperly maintained.

The case was settled as to all defendants except BRK. The trial as to BRK was continued several times, for reasons including scheduling conflicts of counsel for both sides, failure to complete discovery, and a death in the family of one of the lawyers.

Judge Robert Hess, in granting the fourth continuance, to April of last year, obtained assurances from counsel for both sides that they would be ready and said no further continuances would be granted.

A month before the date set by Hess, however, BRK sought a continuance, which Feffer denied. BRK then filed 11 motions in limine, including a motion to limit or bar the testimony of an electrical engineering expert, whom the defendant claimed lacked the qualifications to reliably test the response times of smoke alarms or to opine as to why the alarm in the twins’ room failed to respond.

Three days after those motions were filed, BRK filed another one, seeking to exclude or limit, as speculative, the testimony of a fire protection engineer. Christopher Lautenberger had testified in his deposition that the fire might have been caused by wax from the candle, and may have smoldered before flaming, and thus generated toxic gases that may have incapacitated the victims.

The defense argued this was inconsistent with Platero’s testimony that she looked through the partially open bedroom door, and one of the boys yelled at her through the smoke, and with a toxicology expert’s opinion that the boys died from soot inhalation.

Three weeks later, on April 15, the defendant moved for terminating or evidentiary sanctions for failure to provide trial exhibits. It noted that opposition to the motions in limine were filed two weeks after the statutory deadline.

Attorney Martin Stanley told Feffer that the papers were late because he had been in a three-week trial out of town that ended just before the papers were due, and that he spent subsequent days visiting colleges with his daughter and taking his 91-year-old father to the doctor; that associate Jeffrey Lamb was caring for his new child, who was born April 4; and that co-counsel Gilbert Geilim had been unable to work due to a back injury.

In rejecting the untimely opposition and granting the motions in limine, Feffer found that counsel were aware of their scheduling conflicts, that they were not ready for final status conference or trial, and that there was no reason for all three attorneys to be unprepared.

The parties then stipulated that the plaintiffs could not proceed without the two experts and judgment was entered for the defendant, preserving the plaintiffs’ right to appeal.

Kriegler Friday noted some extenuating circumstances.

Lamb had been given primary responsibility for responding to the motions in limine before his child was born, and the child’s date of birth was not a known factor at the time the trial date was set, the justice noted. Kriegler also pointed out that this was not a case where counsel defaulted completely; they had filed the opposing papers, albeit belatedly, and they did appear at the status conference and announced they were ready to argue the motions and for trial.

“While the untimely filing of plaintiff’s responses to the motions in limine was undoubtedly both inconvenient and burdensome to both BRK and the trial court, the harm flowing from the lack of diligence was not sufficient to warrant a terminating sanction,” the jurist concluded.

Stanley represented the plaintiffs on appeal, along with Esner, Chang & Boyer’s Stuart B. Esner and Joseph S. Persoff. Gary Wolensky and Anne Marie Ellis of Arent Fox, and Robert W. Hayes and Jillian T. Flax of Cozen O’Connor, represented the defendant.

The case is Platero v. BRK Brands, Inc., B264919.


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