Wrongful Death Claim Ends in Plaintiff's Surrender
A team of Los Angeles Manning & Kass attorneys, through their determination and perseverance, prompted plaintiff's counsel to withdraw and plaintiff to dismiss her case with prejudice for zero dollars, as well as sign a full release of claims.
The Backstory: Plaintiff's brother physically abused their elderly mother at home, prompting neighbors to call the Redondo Beach Police. When officers responded, the brother refused to comply with commands to come out of the house, threw a golf club at one of the responding officers, dodged a failed TASER attempt and then mocked the officers over it, threatened to kill a police dog, and then grabbed a knife, took a deep breath, and charged the officers with the knife raised in a stabbing position?despite officer commands to the contrary: prompting the officers to fire in self-defense.
Plaintiff's mother refused to bring suit to recover for the decedent's death, but the decedent's sister filed suit. After the defense team removed the case to federal court, routine pleadings indirectly revealed that decedent's mother was still alive: which meant that the sister had no standing to bring either a survival claim or a wrongful death claim under applicable law.
Partner Tony Sain, of the Governmental Entity Liability Team, aided by associate Kayleigh McGuiness, attacked the claim on the issue of standing. Daniel Herbert, the firm's Trust and Estate Team practice area leader, advised in matters of probate. The court ultimately granted the dismissal on the federal and state wrongful death claims, but gave plaintiff to amend on the survival excessive force claim. (The court later admitted it did not believe there was any amendment possible to correct the standing defect, but it allowed the amendment anyway.)
Plaintiff's attorney then used an ex parte in state court to get plaintiff (decedent's sister) appointed as an administrator of his estate: for the sole purpose of bringing the lawsuit. But the appointment was obtained with a declaration from the decedent's mother: later revealed to be fraudulently obtained.
Plaintiff's attorney missed deadlines including opposition to the first motion to dismiss and failed to timely serve any responses to interrogatories. The court forgave the extreme tardiness/lack of diligence by an ex parte that took up a lot of defense counsel time to oppose. By contrast, when the discovery deadline arrived, the defense had deposed every incident witness and amassed a nearly unsinkable case on the merits; but plaintiff had not taken any depositions (and had thus failed to depose any of the officers).
Determined to use plaintiff's counsel's lack of diligence against him, Mr. Sain served Requests for Admission that, if ignored, would be deemed automatically admitted. When plaintiff's counsel failed to respond, the defense then filed a federal notice of deemed admissions.
Heading into a defense MSJ, aided by Appellate Team members Steve Renick and Julie Fleming, the defense had three strong grounds for disposition by motion: (1) plaintiff lacked standing because her appointment was fraudulent; (2) plaintiff could not oppose the MSJ because the deemed admissions were fatal to her claims; and (3) on the merits, the force was reasonable as a matter of law?particularly since plaintiff had obtained no evidence in discovery to contradict the officers' version of the incident.
Faced with a checkmate, and revelations that would show plaintiff's/counsel's fraud on the court, plaintiff's attorney then sought a stay so he could withdraw as counsel. The court granted the stay and set an OSC re dismissal: ruling that unless plaintiff filed a document by a November deadline stating that she had obtained new counsel, the case would be dismissed. Plaintiff then filed a document by that deadline, but she did not state she was obtaining new counsel. In response, the court extended the stay, set a status conference, and the defense re-noticed plaintiff's deposition to occur right after the stay lifted (after the status conference).
After firing her attorney, in the face of an unstoppable MSJ, plaintiff herself then approached defense counsel and surrendered. She requested, and signed, a stipulation for dismissal with prejudice that included a statement that there would be no monetary settlement, and which included a custom release of all claims.