Mr. Eiler grew up in the hotel and restaurant industry in Las Vegas. With a father who helped opened the Stardust Hotel in 1958 and a mother who was employed at the Sands Hotel, he has worked nearly every department there is in the hotel industry. Mr. Eiler has more than 10 years of hotel operations experience, even working full time during his first year of law school as a front office manager for a resort hotel in Anaheim, California.

A sought after author and speaker, Mr. Eiler brings his years of experience as a thought leader and industry expert to the Hospitality Law community. As an active participant in several key trade industry associations, he also helps shape regulations and legislation affecting the hospitality industries on an ongoing basis.

“We are very excited to have James and his team join our firm in general, and our hospitality practice group in particular,” said Managing Partner Dan L. Longo. “We look forward to combining our experience in this area with the new clients that James brings with him.”

Mr. Eiler lectures on Hospitality Law at California State University Long Beach and is a former Adjunct Professor of Hospitality Law for the William F. Harrah School of Hotel Management at the University of Nevada, Las Vegas, dedicating much of his career to mentoring young lawyers as his way of giving back to the legal profession.

“My team and I are pleased to become a part of Murchison & Cumming and look forward to adding to dynamic hospitality team,” said Eiler.

A graduate of University of Nevada, Las Vegas with a B.S. in Hotel & Restaurant Administration, Mr. Eiler continued onto law school at Western State University College of Law where he was awarded the American Jurisprudence Award for Contracts, profiled in Who’s Who in American Law, and was on the National Dean’s List.

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” ‘Patrons in a Halloween haunted house are expected to be surprised, startled and scared by the exhibits but the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways’ [citations omitted],” wrote Justice Gilbert Nares in the unanimous opinion. The appellate court affirmed the ruling of the Hon. Katherine A. Bacal, Judge of the Superior Court.

Justice Nares concluded: “[T]he very purpose of the Haunted Trail is to frighten patrons. Haunted Hotel informed patrons the event had ‘high impact scares.’ Patrons in a Halloween haunted house are expected to be surprised, startled, and scared by the exhibits. That is what Griffin paid money to experience. At bottom, his complaint here is Haunted Hotel delivered on its promise to scare the wits out of him.”

On October 15, 2011, Plaintiff Scott Griffin, a Los Angeles mortgage broker in his 40’s, joined a group of friends at a Halloween outdoor scare attraction, The Haunted Trail, in San Diego’s Balboa Park. The attraction, owned and operated by Defendant, The Haunted Hotel, Inc., features costumed actors portraying ghouls, zombies and other monsters, armed with prop weapons, who are employed for the express purpose of terrifying the paying customers. The “trail” leads from one creepy temporary structure to another, each presenting a different horror scene. The actors often jump out from dark places, sometimes inches from the patrons, trying to optimize the scare. Defendant provides many warnings that The Haunted Trail is not for the faint of heart, even promising in an orientation audiotape that visitors will be “scared sh—less and try to run, but if you do our creatures will chase you down like the chickens that you are!” The last horror scene features multiple actors who menace patrons with live operating chainsaws, though the chains have been removed, rendering them harmless.

On the night of his visit, Plaintiff made it through the trail without incident, passing the chainsaw-wielding creatures, and walked through an opening in the screen-covered fence, joining his friends on a blocked-off park access road. He believed, after stepping outside the “gate,” that the attraction was over. What Plaintiff did not know was that Defendant also controlled the access road during the event, and that Plaintiff and his friends were in for The Haunted Trail’s signature scare, known as “The Carrie Effect.” (The name is derived from the 1970s horror movie, “Carrie,” which ends with a jolting, unexpected final scare. According to the owner of The Haunted Hotel, Inc., the message of “The Carrie Effect” is, “You might think it’s over … but it’s not over.”)

As Plaintiff regrouped with his friends on the access road, a chainsaw suddenly started up behind them and one of the actors approached, menacingly. Plaintiff said the actor invaded his space and Plaintiff repeatedly told him to back off and to stop, but the actor kept coming. So Plaintiff ran. As Defendant promised in the orientation audiotape, the actor with the chainsaw gave chase and, shortly thereafter, Plaintiff fell, sustaining a broken wrist and injured thumb. Plaintiff did not allege that the actor pushed him or even touched him, but said that he came dangerously close to him with a chainsaw that, apparently, Plaintiff believed was armed with the cutting chain. He testified at deposition that he feared the actor may accidentally stumble forward and cut him, but could not say that he believed the actor was trying to hurt him.

Plaintiff Contentions*: Plaintiff’s First Amended Complaint alleged causes of action for Negligence; Negligent Hiring, Training, Retention and Supervision; and Assault, and included a claim for punitive damages. Plaintiff alleged that The Haunted Hotel, Inc., was negligent in chasing patrons with chainsaws; in continuing the scare outside the “gate” where Plaintiff had an expectation that the event was over; and in entrusting young actors, earning minimum wage, with the decision of whether a particular patron had become too frightened to continue scaring. Plaintiff also alleged that Defendant was negligent in hiring its youthful employees, provided inadequate training and continued to employ actors who had already proven “too wild” for the job. Finally, Plaintiff alleged that Defendant’s menacing of visitors with chainsaws amounted to assault, and that Defendant’s policy of chasing patrons who run, even though Defendant acknowledged that running is the main cause of minor injuries at The Haunted Trail, was “despicable conduct,” supporting a finding of malice and giving rise to imposition of punitive damages.

Defendant Contentions*: In its Motion for Summary Judgment, The Haunted Hotel, Inc., contended that Defendant owed Plaintiff no duty of ordinary care, pursuant the doctrine of primary assumption of risk, and therefore all of Plaintiff’s claims were barred. Defendant urged the Court to follow the California Supreme Court’s recent decision in Nalwa v. Cedar Fair, LP (2012) 55 Cal.4th 1590, in which the Court found that primary assumption of risk, a doctrine traditionally applied to sports and recreational activities, also applies to an amusement park bumper car ride. Defendant argued that, like the plaintiff in Nalwa, who was injured when bumped too hard by a bumper car, Plaintiff in this case assumed the risk that his reaction to becoming too scared at a haunted attraction may prompt him to react in a manner that caused him injury. (Defendant also argued it was entitled to summary adjudication of the Assault cause of action and Plaintiff’s claim for punitive damages, but the Court never reached these contentions.)

Judge Bacal granted The Haunted Hotel’s motion for summary judgment on August 22, 2014, finding that the doctrine of primary assumption of risk applied. That ruling now has been affirmed by the Court of Appeal.

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In light of the growth of border-crossing commerce and rapid development of international business relations, international law is becoming a more and more important part of the structure of our growing global society.  This article focuses on the law of civil procedure in different jurisdictions, with specific focus on the United States (California) and German legal systems.  While the initiation of a lawsuit is similar in both countries, there are significant differences in the civil litigation discovery process (the trial will be addressed in a subsequent article).

Initiating a Lawsuit

Complaint

In both jurisdictions, the plaintiff’s initial filing in a lawsuit is a complaint.   The complaint is a document that contains allegations of the court’s jurisdiction over the defendant and the subject matter in dispute, the facts relevant to the plaintiff’s cause of action and a prayer for relief.  The complaint has to be filed with the court and served on the defendant, along with the summons, which tells the defendant, among other things, that he/she is being sued.  In California, a plaintiff has to serve the complaint on the defendant within 60 days after the filing of the complaint.  If the defendant believes the service was improper, he/she can move the court to quash or invalidate the service and thus will not have to respond to the lawsuit until properly served.  In Germany, the court, and not the plaintiff, is required to serve the complaint on the defendant without undue delay, which is usually immediately after it has been filed with the court.  If the court does not serve the complaint in a timely manner, it could be barred by the Statute of Limitations.

Responsive Pleading

After the complaint has been served, the defendant must file a written responsive pleading, for example an answer.  The consequence of failing to file a responsive pleading is severe and includes the entering of a default judgment.

In California, a defendant has a number of ways how to respond to a complaint: he/she can file an answer, a demurrer, a motion to strike, a motion for judgment on the pleadings, or a motion to dismiss.  With an answer, a defendant asserts the denials or affirmative defenses necessary to controvert the material allegations of the complaint.  The answer has to be filed within 30 days after the service of the complaint.  Alternatively, the defendant can attack the complaint with a demurrer.  The demurrer can be a pleading or a motion, used by the defendant to dismiss the case because the plaintiff does not properly state a cause of action in the complaint.  It also has to be filed within 30 days after service of the complaint.  A motion to strike can be used to attack the pleading, in its entirety or in part, by striking irrelevant, false, or improper matters.  As with the demurrer, the motion to strike has to be filed within 30 days after service of the complaint.  If the court grants the motion, the challenged material is eliminated from the pleading but usually the Plaintiff will get another chance to amend the complaint and fix the defect.  A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired and can be made until 30 days before the initial trial date.  A motion to dismiss can only be used on specified grounds, including nonjoinder of necessary parties and delay in service of summons or prosecution of the action.

In contrast, in Germany, a defendant’s only option to respond to a complaint is to file an answer.  Similarly to California, the defendant can use the answer to state his/her defenses, deny or admit any facts stated in the complaint and bring forward any procedural deficits of the complaint.  The defendant has at least two weeks to file his/her answer.  The court exercises its own discretion to set a due date for the filing of the answer depending on the nature and difficulty of the case and notifies the defendant of said deadline when it serves him/her with the complaint.

Cross-Complaint

A defendant is allowed to file a cross-complaint in which he/she can bring forth his/her own cause(s) of action for affirmative relief.  The cross-complaint can be made against the plaintiff, a co-defendant, or even someone who is not yet a party to the action in both jurisdictions, California and Germany.  In California, if a cross-complaint is filed before or at the same time as the answer, it may be filed as a matter of right.  If a cross-complaint is filed against a third-party cross-defendant, it may be filed without leave of court at any time before the court sets the first trial date.  In any other cases, a cross-complaint can only be filed with leave of court.  In Germany a cross-complaint can be filed against the plaintiff and against a third party that is not yet a party to the action.  However, in contrast to California, a cross-complaint against a third-party is only allowed if filed concurrently with the Cross-Complaint against the plaintiff, otherwise it is waived.  A cross-complaint can be filed at any time before a judgment is entered.

Discovery Process

Once a lawsuit is pending, the discovery process begins.  While the tools of discovery are similar in both jurisdictions, it is exercised in very different ways.  In Germany, the judge or panel of judges investigate the facts and render the decision of a case.  The United States puts the power of discovery into the hands of the lawyers.  The lawyers investigate the facts and present their case to a jury (unless a jury trial is waved).

In German discovery practice, pretrial discovery is virtually non-existent.  Once the court receives a complaint, it is left with two options: it can either set a preliminary hearing during which the parties with counsel are present and state the facts and issues of the case, or, in complex matters, order the parties to submit comprehensive briefs explaining their positions before a hearing date (comparable to a trial).  The briefs are used to identify evidence supporting the parties’ facts and arguments.  However, it is in the court’s discretion which pieces of evidence it will consider before entering a judgment and does not do so until the actual hearing date.  In some cases, the briefs submitted by the parties may be sufficient for a judge to enter a judgment without a hearing all together.  In other cases, the judge will decide which evidence the parties shall offer at trial and orders witnesses to testify at the day of the hearing.  In sum, the courts in Germany conduct the discovery after an issue is addressed by the parties, unlike in the United States.

In the United States, the parties have the following tools to conduct pre-trial discovery:

Written Discovery

Written discovery can consist of interrogatories, requests for admission and requests for production of documents.

Interrogatories are written questions asked by one party to the other which must be answered under oath and in writing.  The questions aim to determine the facts surrounding support and any supportive witnesses and/or documents.  The California judicial system has developed so-called form interrogatories which mostly aim at the material facts of a case.  In addition, special interrogatories can be propounded and construed for a particular purpose and a particular case; there is nothing “special” about them, except that they are more specific than the form interrogatories.  Answers to interrogatories may be used in evidence against the answering party.  A party is limited to 35 special interrogatories and is only allowed to exceed this number if a declaration is attached that states the grounds why more interrogatories are necessary.

Requests for admission can be used to request another party to admit or deny the truth of relevant facts or the genuineness of documents.  The responses have to be in writing and need to be verified.  If the other party admits the truth of the information sought, the issues will not have to be proved at trial.  Should the other party fail to respond, the propounding party may move for an order that the truth of the matters specified in the request or the genuineness of the documents be deemed admitted.  Again, a party is limited to 35 requests, unless it provides a declaration stating why more interrogatories are necessary.

Requests for production of documents can be used by either party to obtain documents reasonably calculated to lead to the discovery of admissible evidence from the opposing party.  As with all other written discovery, the responses have to be in writing and verified.  Another way of obtaining documents is by way of a subpoena.  A subpoena is an order to give evidence or testimony which is backed by the court’s power of contempt.  Subpoenas can be used to obtain a party’s medical records, employment records, records pertaining to prior claims, and lots of other things.  Unlike interrogatories and requests for admission, there is no limit to the number of demands that can be served.

Deposition

The taking of depositions is a very common tool that enables one party’s attorney to conduct a court-like oral examination of the party or a witness under oath outside of the court.  Depositions are transcribed by a court reporter who administers the oath of the deponent, and depositions are more efficient than interrogatories because they allow the examiner to pursue subjects that the deponent addresses in a response or to ask follow-up questions.  The spontaneity of the deposition setting often reveals weaknesses or inconsistencies.  In addition, a party’s deposition presents a good opportunity to evaluate the demeanor and credibility in the party’s case as well as in the witnesses.

In contrast, depositions in Germany are conducted by the judge or the panel of judges and only during trial.  As a matter of fact, the court will order the witnesses it intends to hear on a particular issue to appear to testify at trial and will also decide if a party will be called to testify.  This being said, no parties or witnesses are asked to testify until the time of trial.

Medical Examination

In the United States, the defendant may demand an independent medical examination of the plaintiff if plaintiff’s physical or mental state is at issue.  This is a good method of evaluating a plaintiff’s claim of injury.  Besides this, it allows a professional viewpoint of the subject’s medical evidence and his/her testimony in litigation.  The defendant can choose the examiner that he/she wants to conduct the examination.  The examiner has to be a licensed physician or other appropriate licensed health care practitioner, and the examination has to take place within 75 miles of plaintiff’s residence.  Defendant has to give notice of the examination 30 days in advance that contains the manner, conditions, scope and nature of the examination.

In Germany, medical examinations are ordered by the judge either upon request by a party, or if deemed necessary, by the court.  The physical examination is conducted by a medical expert witness appointed by the court.  The expert witness prepares a report and submits it to the court; the court will then submit a copy to the parties.  The report itself can be used as evidence during trial and/or the expert witness’ testimony can be heard in court at the time of trial.

Experts

As part of discovery process in both countries, specialized experts can be used to deal with particular issues of a case.

In the United States, each party can retain the desired expert witness(es) as long as they are qualified.  An expert must have sufficient education, knowledge, skill, experience, on the job training or other training to qualify.  Expert witnesses are often asked to prepare a report with their findings and opinions and testify at trial.

In contrast, in Germany the judge will appoint an expert witness that is deemed to be necessary to render an opinion as to a specific issue in a case.  In the event a party disagrees with the expert’s opinion, the court is required to obtain a second expert opinion.  In certain circumstances, a party may obtain and submit a privately obtained expert opinion.  The court must then review the expert opinions submitted by a party but cannot rely on it in rendering his/her decision unless both parties agree to it.

Inspections

In the United States, each party can demand to inspect documents, tangible or intangible things and land relevant to the subject matter.  The inspection is not limited to visual inspection of a document, item or land, but can also consist of testing and sampling, etc.  Demands for inspections can be made until 30 days before trial.   Supplemental demands may be served twice prior to the initial setting of a trial date, and subject to the discovery cut-off date once after the initial setting of a trial date.  Inspections are a good tool to obtain further information, to measure, survey, photograph, sample or test the documents, items or land.

Similarly, inspections of documents, tangible or intangible things, and land are allowed in Germany.  They can be initiated by the presiding judge or be requested by a party and are conducted by the judge.  If needed, the judge can appoint an expert witness to assist in the inspection.

In conclusion, the judge or the panel of judges plays the active part in the German legal system by investigating the facts.  They determine the admissible and needed oral testimony and/or evidence, because it ultimately renders the decision.  In the United States, the parties investigate the facts before trial and the attorneys present their case to the jury which ultimately renders a verdict.  The judge merely observes, functions as a referee and upholds the law.