Career Highlights-Litigation

Mr. Wilhelm was able to obtain, during the discovery in this matter, an Order for Videotaped Depositions in an out-of-state setting before this type of transaction, i.e. videotape depositions were allowed in accordance with Code of Civil Procedure. This achievement was a key strategic maneuver, coordinated with the senior partner of the firm of which Mr. Wilhelm was employed at the time, and lent considerable assistance in resolution of the case on a prospective basis.

This was a Corporations Code section 1800 action for dissolution and for breach of fiduciary duty. During the course of this litigation, Mr. Wilhelm went to the Court of Appeals on no less than three occasions, i.e., two for writs of prohibition and one for a preliminary appeal at the outset, with the ultimate resolution of the matter taking place approximately eight years after litigation commenced, at which juncture the litigation was before the Honorable Anthony Joseph, Judge of the Superior Court, now retired. During the course of the litigation, there were three separate defense firms, as every time the defendants lost a major event, they would terminate the services of counsel. In or about 1986 one of Mr. Wilhelm’s joint venture associates, Terry Singleton, joined and was part of the litigation team at the time of settlement in or about 1988. The settlement was a substantial (in excess of seven figures) settlement.

(1992) 3 Cal.4th 296, 320. In or about 1988 Ms. Kendra Knight was playing a game of pick-up touch football on a co-ed basis. Mr. Jewett was on the opposing team and while they were playing this game of touch football, he negligently ran into Ms. Knight, knocked her to the ground and ran over her hand, crushing her little finger. Ultimately, after several surgeries, Ms. Knight lost her little finger on her right hand, her dominant-use hand. Furthermore, her injuries were of even more import to many as she was a maintenance person of private residences, thus the partial loss of use of her right hand was of extreme impact to her livelihood. At the trial court level, a motion for summary judgment was granted against Ms. Knight and that matter was, once becoming a final judgment, appealed to the Fourth District Court of Appeal with Judge Benke, Todd and Lim, sitting by special designation. The Court of Appeals upheld the lower court ruling, whereupon Plaintiff appealed to the California Supreme Court. There were approximately one hundred cases on appeal under this same basic “assumption of risk” doctrine, which at the time had become known as the Ordway Doctrine of Assumption of Risk, which doctrine had originated out of the Ordway case, which was a race horse case in which an injured jockey had claimed one of his co-participants had been negligent and injured him with the resulting verdict of that case being turned away by the court under the assumption of risk doctrine. This same doctrine had been riddled with a multitude of various nuances and a multitude of various interpretations. Accordingly, at or about the time of the appeal from the lower court and the Court of Appeal’s decision to the Supreme Court, there were approximately one hundred cases in line on the same basic issue. Question: What really did assumption of risk mean in relationship to participants, particularly in sporting activities? After waiting for eighteen months, the Supreme Court summoned Mr. Wilhelm to brief this matter as the lead case. Ultimately the matter was decided in front of the entire California Supreme Court in or about June of 1992. After approximately thirty minutes of interchange between Mr. Wilhelm and the Court, and approximately equal interchange with Mr. Daley, the opposing counsel, the Court retired to make its decision. Ultimately, the decision took the course of upholding the lower court as well as the Court of Appeal, but in order to do so, the Court had to create an entirely different aspect of tort law – that having to do with sporting events and what would or would not be considered negligence within that scheme of things. This new rule has found its way into the BAJI jury instructions at 4.70 styled “Liability to co-participant – essential elements”. Notwithstanding that the firm lost the ultimate appeal and argument before the California Supreme Court, it was definitely a career highlight for Mr. Wilhelm to have participated in an argument as lead counsel where there were, as was mentioned above, at least one hundred other cases following this lead case. The argument before the Court was made and articulated in the Supreme Court gallery in Los Angeles, California to the full, en banc presence of the California Supreme Court, at a time when Malcolm Lucas was still Chief Justice. In order to make their ruling, the California Supreme Court had to rewrite the law of assumption of the risk, carving out a subsection styled: Liability to Co-Participant, in a category of sports styled “Active Sports”. While there may still be negligence in sporting events, such as is indicated in the use note for BAJI 4.70 in such sports as archery and golf, this case and its progeny, as well as the new BAJI 4.70, have essentially eliminated ordinary negligence as relates between co-participants in active sports. In order to now secure a verdict in favor of such a plaintiff, the plaintiff must now demonstrate that “the defendant intended to injure plaintiff, or was so reckless as to be totally outside the range of the ordinary activity involved in the sport.” Furthermore, at the end of BAJI 4.70, it is pointed out “a co-participant in an active sport is not subject to liability for an injury resulting from conduct in the course of the sport that is merely accidental, careless, or negligent”. The upshot is that the actions now, in order to recover, need to be intentional or so reckless to be totally outside the range of the activities anticipated within the sport in order to have a recovery. While it was not Mr. Wilhelm’s intent that the Supreme Court rewrite the law in order to defeat both him and his client, such an event is one of the vagaries that does visit civil trial work from time to time. Notwithstanding, as previously referenced, this argument and experience, regardless of the loss incurred, was unquestionably a career highlight, that being to argue as lead counsel in front of the California Supreme Court on what is clearly a landmark case in this area.

Subsequent to assisting a separate client in a case against the same company, the principal of the company retained the firm’s services for a complex series of cases involving claimed rescission of purchase contract and other alleged tortuous activities. The handling of the aforementioned matters became extremely complicated by way of a great deal of outside third party interference through various administrative agencies. Notwithstanding the litigation and notwithstanding the interference from these various agencies, ultimately the matters were resolved amicably and favorably to the owner and, partially as a result of these activities, the principal was allowed to return to daily involvement with the company as the US Navy became fully satisfied that such return was clearly in the best interest of the company as well as the US Navy. The company now is one of the top ten government contractors in San Diego County and furthermore is one of the few private master ship repair companies left in the United States. The firm continues to help the company with ongoing litigation and business issues.

In or about 1992, the firm was retained to assist with the resolution of partnership, i.e., co-shareholder disputes in this small but profitable gold metallization firm located in the North County area of San Diego. Ultimately a buy-out and stock-redemption was finalized and resolved by and between the co-shareholders on a satisfactory basis to both shareholders. Thereafter, the firm continued to counsel the surviving corporation in ongoing business activities and ultimately, in 1993, assisted in finalization and crafting of a sale of all the stock to a publicly held NYSE company. The principal of the company remained as a consultant to the company for an additional six years.

The firm, along with assistance of joint venturing firm Terry Singleton & Associates, prosecuted the action set forth above, which causes of action were primarily framed in the form of intentional and negligent infliction of emotional distress, as well as defamation. In sum, USA Track & Field was found liable for defamation and the associated damages, part of which damages resulted in the plaintiff having been denied a level playing field for entry into the final 1992 Olympic tryouts (defendant UCLA settled out on favorable terms).

A jury verdict was obtained in the amount of $982,000 and, when added to costs, exceeded $1,000,000. Subsequent to the denial of defendant’s motion for new trial made before the Honorable Richard Haden, the Judge, for some inexplicable reason reversed himself (in our opinion “reversible error”) and granted what was essentially a second hearing and granting a new trial. All this was premised on what plaintiffs believe was bogus evidence, or at least inconclusive evidence presented after the trial was completed, of some notes which, had they been true, indicated perjury on the part of some of the witnesses in the trial.

Once the Judge reversed himself, the onus was then thrust upon the plaintiff to carry the burden to the Court of Appeals, which Court in or about 1998 entered a decision upholding the lower Court, never reaching the actual issues (whether or not Judge Haden had committed error), but rather stated that there should have been a judgment notwithstanding the verdict entered by the Court. The trial Court and all counsel are fully aware that there was more than substantial evidence to uphold the verdict; this was a true travesty of justice. An appeal was taken to the California Supreme Court but, given the fact that it is a discretionary appeals court and accordingly exercised its discretion not to hear the appeal, the long journey traveled by this young man and his law firm ended at that juncture.

Notwithstanding the clear miscarriage of justice, the jury verdict obtained in this matter by this law firm in association with the law firm of Terry Singleton & Associates was the first jury verdict in history to have been entered against a U.S. Olympic Committee governing body relative to alleged violations of the drug testing protocol of those organizations.

The firm represented Dr. Harry Maas and his company in a series of complaints and cross-complaints that involved everything from theft of trade secrets to breach of contract to defamation. Ultimately, by way of settlement through mediation, Silver Fox Merchandising was able to obtain a very respectable settlement for the violation of the rules of confidentiality and trade secrets and resolve cross-complaints for defamation on a basis of very little compensation being contributed to those settlements by the company itself.

The ongoing litigation included representation of large processing companies of agricultural goods in connection with cross border relations for monies owed on crops; recovery of converted real property for international clients on a local basis; negotiating buy-outs of sophisticated night club alliances; ongoing business advice for those same venues and ultimately sales contracts for the venues.

On the large damage side of case law the firm was associated with Singleton & Associates on an extremely large injury accident case involving a lady who had an excess of $1 million in medical damages; there were other lawsuits where we defended computer companies and partners in defense contractors for various and assorted claims of alleged violations of fiduciary duties; the firm was involved in defending and prosecuting many partnership and co-shareholder’s disputes among various businesses; the firm represented certain contractors and dealt with contractors state licensing board. Further, there were business brokerage commission disputes where the firm was involved and successful at trial, and in addition to negotiating many leases there were many lease disputes that the firm became involved with, either through litigation or preliminary negotiations resolved prior to litigation.

The firm also became involved with defending some very serious environmental spill/clean up indemnification; lastly the firm has developed a sub-specialty in the area of trouble shooting problems vis-a-vis trustees of trusts as defendants or plaintiffs in various large estates where there can be multiple claimed breaches of fiduciary duties with resulting large economic damages. Suffice to say that the litigation experience of the firm continues to build over the approximate 34 years of which the company has been in business (the owner of the company has been in the law practice for 39 years).