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Airis SFO LLC v. City and County of San Francisco.

Problem:
Houston-based developer Airis Holdings LLC sued San Francisco International Airport after the San Francisco Board of Supervisors exercised its option not to proceed with a $250 million air cargo project at the Airport. The developer brought on a major international law firm to press claims for lost profits, breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel and unjust enrichment. The developer sought $40 million and was motivated to take the case to trial.

Solution: The Right Team & The Right Strategy

Facing numerous legal and factual theories, Mr. Newdorf mapped out a legal strategy to eliminate the developer’s claims one by one. Working with top officials of the Airport and the City, David Newdorf headed a litigation and trial team of two other lawyers and two paralegals. Client executives were closely involved at every stage of litigation and trial. After two years of hard-fought discovery, pre-trial motions, trial and post-trial motions, San Francisco prevailed against the developer on all of its claims. Mr. Newdorf is now working with the City to recover its costs and fees of the litigation from plaintiffs.

Aaron Peskin, president of the San Francisco Board of Supervisors, said:  “David Newdorf's tireless advocacy made the difference and saved taxpayers millions of dollars.”

Read the latest news about Newdorf Legal's $3.4 million attorneys' fee award in this case.

Nishihama v. City and County of San Francisco.

Problem:
In this case, as in many others, the trial court permitted plaintiff and her contingency fee lawyer to obtain a windfall damage award for her personal injury cases.

Solution: Move The Law Through Appellate Advocacy

David Newdorf was lead appellate counsel in this case that resulted in a published decision that is one of the most frequently cited cases in California litigation. Nishihama v. City and County of San Francisco, 93 Cal. App. 4th 298 (2001). This seminal decision on medical damages for personal injuries established a cap on jury awards so that plaintiffs and their lawyers cannot recover more in medical damages than the actual cost of their treatment.

Mr. Newdorf’s work resulted in an ongoing reduction of his client’s legal liability by millions of dollars a year and moved California law toward a more equitable balance between business and industry, on the one hand, and fair compensation for injured parties.

The plaintiffs’ bar lobby has been attempting to undo — so far unsuccessfully — this and similar judicial decisions through legislation in Sacramento. Mr. Newdorf has published commentaries explaining this area of law for lawyers and lawmakers.

Snyder and Santoro v. City and County of San Francisco.

Problem:
This high-profile lawsuit - dubbed "fajitagate" by the press --stemmed from an early-morning altercation between three off-duty San Francisco police officers and two men outside a bar. The case garnered headlines because one of the officers was the son of a high-ranking police official. The plaintiffs sued San Francisco on the theory that the City should be liable for police officer's off-duty conduct if the police department failed to enforce its policies concerning the use of reasonable force to make arrests while on-duty.

Solution: Focus On The Adversary's Weakness

Plaintiffs told a compelling story, but the law did not support the claims. Mr. Newdorf’s motion for summary judgment persuaded the U.S. District Court for the Northern District of California to reject plaintiffs’ legal theory and dismiss the case. Agreeing with Mr. Newdorf’s argument, Judge Jeffrey S. White stated that “Defendants persuasively argued at oral argument” that the factual record before the court was more favorable for the City than similar cases discussed in other published decisions.

On appeal, Mr. Newdorf wrote the briefs defending the district court judgment and argued it in front of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. This case was one of four selected to be argued in February 2008 before a large audience of law students and professors at the U.C. Berkeley School of Law, where the Ninth Circuit conducts a special sitting each year. For more information on this case, visit the Newdorf Legal blog.

News Update

On July 23, 2008, the Ninth Circuit unanimously affirmed the judgment in favor of defendants. The judges wrote: �Plaintiffs did not tender sufficient evidence to create a genuine issue of material fact as to whether a City policy of inadequate discipline for officers� on-duty misconduct was the proximate cause of three off-duty officers� decisions to assualt the Plaintffs for their bag of steak fajitas.�

Read the Ninth Circuit decision here.

Blessed Marvelous Herve v. City and County of San Francisco.

Problem:
Mr. Herve sued San Francisco and several police officers for alleged civil rights violations in U.S. District Court for the Northern District of California. Plaintiff claimed that a police officer choked him, squeezed his testicles and forced him to sit in human feces at the Central Police station. Plaintiff produced physical evidence and a supposed eyewitness to the abuse, a fellow detainee at the police station. Plaintiff obtained representation from a well-known trial lawyer (selected for membership in the prestigious American Board of Trial Advocates and the American College of Trial Lawyers) who .conducted numerous depositions and spent hundreds of thousands of dollars to take the case through trial.

Solution: Effective Cross-examination That Undermines Witness Credibility

Despite supposedly independent eyewitness testimony, the officers and the City were committed to demonstrating the defendants’ innocence to a jury. Defendants employed investigators to conduct thorough background checks on the supposedly independent witnesses. The investigation laid the foundation for effective cross-examination at trial.

The Recorder observed the trial and described it as follows on the front page on March 2, 2005:

Blessed Herve’s story was stomach-turning. Early last month, a federal jury listened as his lawyer described how a San Francisco police officer allegedly led a handcuffed Herve into a holding cell and forced him — by punching him in the stomach, slamming his head into the wall, and grabbing his testicles —to take a seat on a bench “covered in human feces.”  The civil rights lawsuit accused another officer of looking on, laughing.

In the officers’ defense, Deputy City Attorney David Newdorf was the picture of incredulity. Depicting Herve’s witnesses as untrustworthy and his story preposterous, Newdorf challenged the credibility of one plaintiff witness who had described encountering Herve after the incident. “When’s the last time you walked up to someone who smelled like feces and said hi?” he asked. “Real people don’t behave like that.” When the jury sided with the defense two days later, it fit into a pattern that has emerged in civil rights cases against San Francisco police: The city attorney’s office is either settling the cases or winning them at trial.

Read the entire Recorder article here.

Rosnow v. City and County of San Francisco.

Problem:
In this lawsuit a widow sought damages for the death of her husband, who accidentally drove himself and his wife into San Francisco Bay. The tragedy occurred while the wife was teaching her husband how to drive. The husband was in the driver seat, the wife the passenger. They were stopped in a parking lot facing the San Francisco Bay. From a stop, the car drove over a six-inch curb, a 15-foot sidewalk, another six-inch curb and into the water. The husband died. A passerby rescued the wife. In her lawsuit, she claimed that the lack of a more effective barrier made the lot dangerous.

Solution: Focus On Sound Policy Underlying Legal Principles

The law states that municipalities have no duty to prevent all possible accidents on public property. As lead appellate counsel, Mr. Newdorf persuaded the Court of Appeal that San Francisco was not liable for the incident because the risk of injury was remote when the lot was used with due care. To read the Court of Appeal’s decision, visit the Newdorf Legal blog.

State of California v. PricewaterhouseCoopers

Problem:
Outside auditors allegedly turned a blind eye to wrongdoing by their client, an escrow company that improperly retained unclaimed consumer funds from escrow accounts.

Solution: Apply Existing Laws To New Situations

San Francisco brought novel consumer-protection claims against one of the "Big Four" accounting firms under the False Claims Act and the Unfair Competition Law. The San Francisco Superior Court dismissed all claims against the accountants. As appellate counsel for the City, David Newdorf persuaded the court of appeal to reverse the pre-trial dismissal against the auditors. The Court of Appeal held that public prosecutors could pursue claims under the state False Claims Act and the Unfair Competition Law against auditors who knowingly conceal their clients' wrongdoing.

To read an excerpt of the full opinion in State of California v. PricewaterhouseCoopers, go to the Newdorf Legal blog.

Problem:
A business or public entity faces a lawsuit brought as a class action.

Solution: Early Focus on Defeating Class Action Status.

The assertion of class claims makes discovery and trial preparation more costly and can vastly increases the settlement value of a case. David Newdorf was lead defense counsel in two class actions against the City and County of San Francisco and a litigation associate representing Ford Motor Co. in a nationwide consumer class action alleging losses due to defective ignition modules.

In Doe v. City and County of San Francisco, plaintiff challenged San Francisco’s Juvenile Hall strip search policy. Working with another deputy city attorney, David Newdorf defeated the plaintiff’s motion for class certification. Following this procedural victory, the individual plaintiff’s claim settled on terms that were considerably more favorable than a class-wide settlement.

David Newdorf was also lead defense counsel on a class action challenging the strip search policy at the San Francisco County Jail. Mr. Newdorf briefed and argued the adult strip search class action in the Ninth Circuit Court of Appeals. For more information on these cases, visit the “Court Decisions” and “Articles & Commentaries” pages of the Newdorf Legal Blog.

Read the Section 1983 Civil Rights Law Reporter, edited by Mr. Newdorf, for the latest news and analysis in this evolving area of law.