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Michael Verdugo, Brother of v. Target Corporation

December 11, 2012

MICHAEL VERDUGO, BROTHER OF DECEDENT; ROSEMARY VERDUGO, MOTHER, SUCCESSOR AND HEIR OF MARY ANN VERDUGO, DECEDENT, PLAINTIFFS-APPELLANTS,
v.
TARGET CORPORATION, A MINNESOTA CORPORATION, DEFENDANT-APPELLEE.



D.C. No. 2:10-cv-06930- ODW-AJW Central District of California, Los Angeles

FOR PUBLICATION

ORDER

Before: Harry Pregerson, Susan P. Graber, and Marsha S. Berzon, Circuit Judges.

Order;

Concurrence by Judge Graber;

Dissent by Judge Pregerson

SUMMARY*fn1

Certification to CA Supreme Court

The panel certified a question of California law to the California Supreme Court, withdrew the case from further consideration, and stayed further proceedings pending final action by the California Supreme Court.

The panel certified the following question:

In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an Automatic External Defibrillator ("AED") for cases of sudden cardiac arrest?

Judge Graber concurred fully in the order, and wrote separately to note that in the absence of the California Supreme Court's guidance, she would disagree with Judge Pregerson's dissenting view.

Judge Pregerson dissented from the order certifying a question to the California Supreme Court. Judge Pregerson would reverse the district court's dismissal of the complaint and remand for further proceedings because he would hold in the circumstances of this case that the California common law duty for a business to provide emergency first aid to its invitees requires the availability of an AED for cases of sudden cardiac arrest.

ORDER

Pursuant to Rule 8.548 of the California Rules of Court, we request the California Supreme Court to decide the question of California law set forth in Part II of this order. This case is withdrawn from submission until further order of this court, and all further proceedings in this court are stayed pending final action by the California Supreme Court.

There is no controlling precedent resolving the question we set forth below. The answer will determine the outcome of the present appeal. Our phrasing of the question below is not meant to restrict the California Supreme Court's consideration of the issue involved. We agree to follow the answer provided by the California Supreme Court.

I CAPTION AND COUNSEL

Michael and Rosemary Verdugo are considered the petitioners in this request because they appeal from the district court's adverse ruling on the specified issue. The caption of this case is:

MICHAEL VERDUGO, brother of Decedent; ROSEMARY VERDUGO, mother, successor and heir of Mary Ann Verdugo, Decedent, Plaintiffs-Appellants, v. TARGET CORPORATION, a Minnesota corporation, Defendant-Appellee.

The names and addresses of counsel are:

For the Verdugos: Robert A. Roth, Tarkington, O'Neill, Barrack & Chong, Berkeley, CA; David Griffith Eisenstein, Law Offices of David G. Eisenstein, P.C., Carlsbad, CA. For Target Corporation: Benjamin R. Trachtman, ...


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