NICHOLS J. SMITH
EXPERT WITNESS TESTIMONY - SECURITY
Nichols J. Smith has testified in California Superior Courts on the issues of negligent security, premises liability and the adequacy of private security. In addition to the cases below that went to trial, Smith has testified at deposition in dozens of other cases that were settled prior to trial, involving the same issues.
He testified in court as an expert in the following cases:
1993 Holt v. Foodmaker, Superior Court of Santa Clara County
This case involved a plaintiff at a fast food restaurant who had been injured by flying glass from a broken window caused by a 3rd party who had been harassing plaintiff. Smith testified for the defense. Defense Verdict (Jury Verdicts, May 21, 1993 Volume 37, Number 21)
1994 Riles v. San Francisco Housing Authority, San Francisco Superior Court, Case No. 945838
The plaintiff, an 18-year-old student, was attacked by two pit bulls in the common area of a housing project located in San Francisco. This project, Hunters View, was owned and managed by the city of San Francisco. At the time of the incident, the dogs involved in the incident were apparently under the control of two young men who were illegal residents of the project. At trial, evidence was introduced suggesting that the two men had placed the dogs in an attack mode. Instead of going after the intended target, however, the dogs spotted the plaintiff as she was walking nearby and attacked her. Plaintiff's attorney argued that housing authority officials 1) knew about the presence of pit bulls in the project, 2) these dogs were regularly trained to fight in the common area in the presence of the people who lived there and 3) that they were being used for guard dog purposes by drug dealers. This policy was contrary to the housing authority's policy forbidding the keeping of animals. Prior to the incident complaints had made to the housing authority about the presence of the dogs. The defense posture was that the housing authority acted reasonably in handling the inherently difficult problem of drug dealers and their dogs (The security function was handled by the San Francisco Police Department). They further argued that government regulations made it difficult to enforce its lease provisions and pet policy. Smith testified on behalf of the Housing Authority. Judgment: $197,128 on 6/20/95 for the plaintiff.
1996 Nottingham v. Westfield Shopping Center, Santa Clara County Superior Court Case # 1-96-CV-760832.
The case involved a female employee of a store located at the Vallco Shopping Center in Cupertino, California who was viciously assaulted and beaten in the parking lot. The store's policy required that all employees park a distance away from the shopping center and the area that the plaintiff parked in did not have good natural surveillance. The plaintiff's contention was that there were simple security measures that should have been in place that would have prevented the assault. Smith testified at the Arbitration hearing in 1998. Arbitrator's award to plaintiff.
2000 Lisa Marie Pendleton and Sheila Mulligan v. Peppertree Shopping Center,
Albertson's, Clothes Time et al., Superior Court of Alameda County Case # H-165123-4.
The case was a premises liability case involving two women working at a clothing store who were assaulted and raped by a serial rapist. The rapist, until the time of this attack, had been targeting employees of a specific shoe store chain. The issue was whether or not additional roving guards would have deterred this specific type of criminal. This case had been tried once, resulting in a $1.6 million plaintiffs' verdict. It was appealed and sent back to be retried. Smith testified at the second trial for the defense. Plaintiffs' verdict, $608,000.
EXPERT WITNESS TESTIMONY - INVESTIGATIONS
Smith has also been offered as an expert witness twice at deposition regarding issues on the standards and ethics involved in conducting private investigations.
1992-Bern v. Unum Insurance Company, U.S. District Court Case # 3:1992CV0789
The case involved denial of benefits under a group disability insurance policy. The plaintiff, who had been diagnosed with MS, asserted, among other issues, that the insurance company's investigation of his personal life and the surveillance of his activities was conducted in an unlawful manner and was not consistent with the standards of practice and ethics recognized in the investigative industry. Smith reviewed the insurance company's investigation file and found that there were numerous instances of violations of the standards of practice in the investigative industry as well as surveillance tapes that had been clearly selectively taken. In addition, the surveillance appeared to be focused on whether or not the plaintiff exhibited any physical signs of impairment when his primary symptom was cognitive impairment. Smith testified for the plaintiff at deposition in 1993. The trial was bifurcated as to liability and damages. In the first phase, Unum was held liable for bad faith. This case settled shortly before the second phase, at which Smith was scheduled to testify.
2006 Duran v. SSA Terminals, Alameda County Superior Court Case # RG04141330
Smith testified for the defense in the case that asserted, among other issues, that surveillance video taken of the plaintiff violated his right to privacy. He testified that all of the video taken of the plaintiff was taken from positions of public view and that there was no violation of his right to privacy. The case was settled prior to trial.
EXPERT WITNESS TESTIMONY - ASSET INVESTIGATIONS
2015 San Diego Superior Court Case 37-2011-00095643-CU-CO-CTL
Plaintiff Reukema was the holder of a federal court judgment obtained in 2005 for more than $500,000 against Charles F. Rebozo, nephew of "Bebe" Rebozo, the notorious confidante of Richard M. Nixon. The initial transaction that gave rise to the judgment involved the sale by Rebozo to Reukema of a pleasure craft to which Rebozo did not possess clear title.
Reukema agreed to assign the judgment to Peter Gilboy, a professional judgment enforcer, for purposes of collection, in exchange for 45% of the amounts collected. Gilboy settled the entire judgment, over $500,000, for $198,000. Plaintiff alleged that this settlement was made without plaintiff's knowledge or approval. Plaintiff Reukema alleged breach of contract, breach of fiduciary duty and fraud and filed the instant action in 2011.
From the court's minute order "Reukema alleges Gilboy settled the debt too cheaply and against his express wishes," and (although not pled as such) essentially committed "collection agent malpractice." Reukema alleges he had a veto over any settlement or compromise of the underlying judgment against Rebozo.
Smith's independent investigation revealed that the defendant in the underlying federal judgment owned substantial real property assets in Florida and that he had owned that property during the time that defendant Gilboy was settling the assigned judgment. He was also the President of a non-profit charitable foundation with $18 million dollars in assets that could not be attached. Smith's investigation showed that the defendant Rebozo had both substantial assets and standing in the community, indicating that Gilboy should have collected a much higher debt settlement.
Smith testified for the plaintiff as to the inadequacy of the asset search, subsequent collection efforts and as to the fiduciary nature of collection work.
Judgment for the plaintiff on the counts of breach of contract and breach of fiduciary duty.