DECEMBER 2017 • $4 A Publication of the San Fernando Valley Bar Association
A Law Firm that Does Well By Doing Good
Avoiding Liabilities from Environmental Agency Investigations www.sfvba.org 2 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 3 www. Life Insurance Term, Universal Life, Survivorship, Estate Planning, Key-Person Disability Insurance Insure your most important asset—"Your ability to earn income" Insures you in your own occupation Benefits keep up with inflation Long Term Care Insurance Several quality carriers for individuals and firms Health Insurance All major insurance companies for individuals & firms
An Insurance and Financial Services Company
Phone: (800) 468-4467 E-mail: [email protected] Elliot Matloff
4 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org CONTENTS DECEMBER 2017 VALLEY AWYER A Publication of the San Fernando Valley Bar Association
14 24
BLANKET THE HOMELESS 33 30 34
DEPARTMENTS On the cover (left to right): Corinne Chandler, Alan E. Kassan, Lisa L. Kantor, Glenn R. Kantor and J. David Oswalt Photo by Ron Murray 7 President’s Message 9 Editor’s Desk FEATURES 10 Event Calendars 14 Avoiding Liabilities from Environmental Agency Investigations | BY GARY A. MEYER 13 Social Briefs MCLE TEST NO. 110 ON PAGE 23. 37 Attorney Referral Service
24 A Law Firm that Does Well By Doing Good | BY MICHAEL D. WHITE 38 Photo Gallery 30 Stress Free Holidays: 41 Valley Community A Primer for Attorneys and Their Clients | BY VANESSA SOTO NELLIS Legal Foundation AND TERRI L. ASANOVICH
34 Blowing the Whistle in California | BY ANI M. AKOPYAN 44 Classifieds
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 5 How did
SAN FERNANDO VALLEY BAR ASSOCIATION that last 5567 Reseda Boulevard, Suite 200 Tarzana, CA 91356 Phone (818) 227-0490 lease work Fax (818) 227-0499 www.sfvba.org
EDITOR out for you? Michael D. White
GRAPHIC DESIGNER Marina Senderov
BOARD OF TRUSTEES
President ...... Alan E. Kassan President-Elect ...... Yi Sun Kim Secretary ...... Barry P. Goldberg Treasurer ...... David G. Jones Landlords lease office space everyday, so they know the ins and outs of crafting a lease Past President ...... Kira S. Masteller that benefits them the most. At Mazirow Commercial, we represent you, the tenant, Executive Director ...... Elizabeth Post and only you. With our decades of lease negotiation experience, we make sure you come to an even negotiating table with the landlord and stay out of a leasing bind. TRUSTEES Matthew A. Breddan Joanna M. Sanchez Michelle E. Diaz Allan D. Sarver Heather Glick-Atalla George N. Seide Peta-Gay Gordon Steven M. Sepassi Alexander J. Harwin Hannah Sweiss Amanda Marie Moghaddam Toni Vargas 805-449-1945 Tenant Representation & Advisory Real Estate Services Kathy G. Neumann Christopher P. Warne www.tenantadvisory.com For large corporations to individual entrepreneurs Samuel R.W. Price
STAFF
Director of Public Services ...... Rosie Soto Cohen Director of Education & Events .... Linda Temkin Communications Manager ...... Michael D. White Member Services Coordinator ...Sonia Bernal Referral Consultant ...... Catherine Carballo- Merino Referral Consultant ...... Miguel Villatoro
SECTION CHAIRS
Bankruptcy Law ...... Steven R. Fox Business Law & Real Property ...... Criminal Law...... David S. Kestenbaum ...... Berry F. Hammond Employment Law ...... Kimberly Westmoreland ...... David G. Jones Family Law ...... Sandra Etue ...... Amir Aharonov IP, Entertainment & Internet Law... John Stephens Litigation ...... Christopher P. Warne New Lawyers ...... Hannah Sweiss Probate & Estate Planning ...... John E. Rogers ...... Nancy A. Reinhardt Taxation Law ...... Hratch J. Karakachian Workers’ Compensation ...... Jeffrey S. Swartz
Valley Lawyer is published monthly. Articles, announcements, and advertisements are due by the first day of the month prior Join the Valley Bar Network the fi rst to the publication date. The articles in Valley Lawyer are written for general interest and are not meant to be relied upon as a Monday of each month. substitute for independent research and independent verification of accuracy.
Contact [email protected] for more information. Printing Southwest Offset Printing © 2017 San Fernando Valley Bar Association
6 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org 2.385” x 9.875”
PRESIDENT’S MESSAGE
ALAN E. KASSAN SFVBA President Doing the Right Thing
OLLOWING THANKSGIVING, WE WIND INTO THE roof over their heads. A Harvard University study found that end of the year with a spirt of sharing and giving and for over 2 million households in Los Angeles and Orange spending time with loved ones. For most of us, Counties, housing costs exceed 30 percent of income. For December is a happy month. But, sadly, a lot of lip service is so many others, though, the problem is one of mental health given this time of year to helping those less fortunate among and our society’s failure to attend to those who need proper us, but in reality, not enough time, money or spirit is invested treatment and care. in doing the right thing. Hopefully, Measure H approved in March and Proposition Earlier this year, Los Angeles Mayor Eric Garcetti HHH approved late last year will begin to ameliorate some of commented on a recent study showing that homelessness these problems by putting more affordable housing on the in Los Angeles County had increased by 23 percent over the market, and providing more transitional housing options and last year. 23 percent in professional counseling. While one year! Incredible. But those efforts ramp up though, we even more incredible all can, and should, make a special is the sad fact that effort to help in whatever way we the fastest growing are able. age demographic for Over the last year, the homelessness is the SFVBA Board of Trustees has age range of 18 to 24 collected personal daily care year olds, where the essentials like toothpaste, population increased toothbrushes, soap, shampoo, by 64 percent over the deodorant, lotion, shaving kits, and past year. The explosion other personal care items at each of homelessness in the of our monthly meetings, which we San Fernando Valley, at then box and hand-deliver to the 4 percent over last year, LA Family Housing project in North was nowhere near the Hollywood. This month, we will also overall average, but even still, the count as of May 2017 had solicit gift cards and unwrapped children’s toys for Haven Hills, 7,627 homeless in our Valley communities. the West Valley Food Pantry, and LA Family Housing. We’ve all seen it… more tents, or box-shelters, or Also, every December, we solicit donations from all of people pushing shopping carts jammed with their worldly our members for our Blanket the Homeless campaign. That possessions. It’s more than a problem; it’s a tragedy. Many effort collects funds to purchase about 1,200 new blankets people have a tendency to ignore the problem, or write-off for distribution to organizations like Children of the Night, the homeless as deadbeats or bums too lazy to work. But, in M.E.N.D., the Women’s Care Cottage, Bridges, El Nido, almost every case, those assumptions are not only unfair and Hillview Mental Health, Haven Hills, the San Fernando Valley discriminatory, they are totally false. Interfaith Council, the San Fernando Valley Mental Health Approximately 50 percent of the homeless in Los Angeles Center, and LA Family Housing. County are people who are actually working…and working If you are already doing your part, thank you. If you hard at one or more jobs. The problem is that they are not want to do more, consider contacting one or more of the earning enough to afford the region’s high cost of living. organizations I’ve mentioned, or any others you fi nd, and try Of course, housing is important, but food, clothing, to help. childcare, healthcare, and transportation even more so, and If everyone just did a little, an awful lot could get done! after that, there just isn’t enough money left to afford a secure Happy Holidays! www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 7 8 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org EDITOR’S DESK
MICHAEL D. WHITE Hard Work Has SFVBA Editor Its Rewards
T’S HARDLY UNUSUAL TO HEAR successfully petitioned the California about attorneys who are active Department of Managed Health Care volunteers in their community, as on behalf of a client with anorexia being the core of the law they serve is to discharged from a residential care serve the needs of the community facility, forcing her insurer to agree to and help build a stronger, more pay for her treatment. responsible society. Debunking the “Perry Mason…TV What is unusual, though, is fi nding version of justice,” Kantor says a group of attorneys who work at a “reality…is far different. We work long, fi rm that has woven into its fabric a hard hours digging and digging and commitment to “doing well by doing justice seeps out only after a lot of good,” while representing clients who hard work. I always tell our lawyers are bringing suit for denied claims to be better prepared than the other against some of the biggest and side every time they walk into court, most powerful insurance get on the phone, or have a companies in the country. meeting.” When I interviewed To win for your attorneys Glenn and client, she says, “You Lisa Kantor as the Justice only need to know more, you winners of the this comes after a lot need to dig deeper… month’s cover auction You need to have article on community of hard work.” more information and service, I readily admit I that’s how justice comes was struck by their commitment because you have to dig hard for to genuine justice–a commitment that, the truth.” over the past 25 years, has earned The commitment to community the hard-charging fi rm the respect of service comes, says founding arbitrators, mediators, judges, and even partner Glenn Kantor, from the fi rm’s opposing counsel. cornerstone of “seeking justice for Northridge-based Kantor & those who’ve been denied it. I see the Kantor’s reputation is built, in no small young lawyers here now taking over, part, on the groundbreaking work done so we’re training some really good by founding partner Lisa Kantor while representing clients in the areas of lawyers to walk in our footsteps.” mental health and eating disorders. The most tangible reward comes, Among a number of landmark he says, “When we get to tell a cases, in 2011, she won the fi rst federal client, ‘You won…you’re getting your appellate court ruling that determined benefi ts...you get to have the surgery health plans in California must pay you need,’ the tears of joy are a for all medically necessary treatment wonderful thing to experience. It’s a for severe mental illnesses, including reminder that we can do well by residential treatment. She later doing good.” www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 9 CALENDAR DECEMBER 2017
SUN MON TUE WED THU FRI SAT Valley Lawyer Member Bulletin Deadline to submit announcements to editor@ sfvba.org for January issue.
Bankruptcy Law Section Membership Recent BAP Blanket the & Marketing Opinions Homeless Committee 12:00 NOON and ARS 6:00 PM SFVBA OFFICES Legal Clinic 5:30 PM Probate & SFVBA OFFICES 8:30 AM THE ATTIC Estate Yi Sun Kim will lead LA FAMILY SHERMAN OAKS Planning Section the panel on the HOUSING 10 Things To most relevant BAP NORTH VBN is dedicated to HOLLYWOOD offering organized, Do In Mediation opinions all bankruptcy (Recognizing and attorneys should know. high quality Avoiding the Most networking for Bankruptcy Law Legal Commonly-Made Specialization credit SFVBA members. Mediation Mistakes) 12:00 NOON pending. (1.25 MCLE Hours) MONTEREY AT See page 33 ENCINO RESTAURANT Retired Judges James Steele and Reva Goetz will discuss what it takes and what you need to know to be successful in mediation. (1 MCLE Hour)
DDecemberecember 12,12, 20172017
SSFVBAFVBA OOffiffi cesces
BBringring aann unwrappedunwrapped nnewew toytoy oror giftcardgiftcard toto benefibenefi t tthehe childrenchildren ofof HavenHaven HillsHills andand WWestest VValleyalley FFoodood PPantry.antry. RRSVPSVP toto 818.227.0490,818.227.0490, ext.ext. 21052105 oror [email protected]@sfvba.org.
The San Fernando Valley Bar Association is a State Bar of California MCLE approved provider. Visit www.sfvba.org for seminar pricing and to register online, or contact Linda Temkin at (818) 227-0490, ext. 105 or [email protected]. Pricing discounted for active SFVBA members and early registration.
10 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org JANUARY 2018 CALENDAR
SUN MON TUE WED THU FRI SAT
Valley Lawyer Membership Member Bulletin & Marketing Committee Deadline to submit SFVBA OFFICES 6:00 PM CLOSED announcements to SFVBA OFFICES [email protected] for February issue.
Probate & Estate Planning Section 5:30 PM New Laws CHABLIS 12:00 NOON RESTAURANT MONTEREY AT ENCINO TARZANA RESTAURANT VBN is dedicated to offering organized, Board of Trustees
6:00 PM 01.12.18 high quality 01.13.18 networking for SFVBA OFFICES SFVBA members. Braemar Country Club 4001 Reseda Tarzana Blvd See page 12
Taxation Bankruptcy Law Section Law Section Property Tax Update 10 Most Interesting 12:00 NOON Opinions of the SFVBA OFFICES Central District Court 12:00 NOON Former California State SFVBA OFFICES Board of Equalization SFVBA OFFICES Tax Counsel Michael The distinguished CLOSED LeBeau will provide an panel includes Judge update on ad valorem Virginia Kaufman and property taxation, bankruptcy law certifi ed including the recent legal specialists Roksana documentary transfer Moradi and James Selth. tax case, 924 North Bankruptcy Law Legal Ardmore Avenue, LLC v. Specialization credit Country of Los Angeles. pending. (1.25 MCLE (1 MCLE Hour) Hours)
Family Law Editorial Section Committee New Laws 12:00 NOON 5:30 PM TONY ROMA’S MONTEREY AT ENCINO RESTAURANT Don’t miss this annual update. Approved for Family Law Legal Specialization. (1.5 MCLE Hours)
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 11 SAN FERNANDO VALLEY BAR ASSOCIATION MEMBERS EARN UP TO 12.5 HOURS OF MCLE FOR
ONLY $199!
01.12.18 01.13.18
Braemar Country Club Saturday, January 13 MCLE Flash Drive Only $169 4001 Reseda Tarzana Blvd ◗9:00 a.m. for MCLE Marathon Registrants! Nuts and Bolts of Estate Planning Alice A. Salvo Contains 13 Popular Valley Lawyer Law Offi ces of Alice A. Salvo MCLE Articles Friday, January 12 1 MCLE Hour Earn the Maximum 12.5 Hours of Self-Study Credits ◗9:00 a.m. (Including All Specialty Credits) Practicing Law in Today’s ◗10:00 a.m. Regulatory Environment: Top Ten Insurance Agent Mistakes Registration Form and Fee Agreements and Other and How to Advise Your Clients Membership Application Elliot Matloff , Th e Matloff Company Hot Ethics Topics 1 MCLE Hour James I. Ham (Pre-Registration deadline is January 5, 2018.) Regulatory & Discipline Counsel ◗ for Legal Professionals 11:00 a.m. Name 2 MCLE Hours (Legal Ethics) Escaping Bar Discipline Prof. Rob Barrett 2 MCLE Hours (Legal Ethics) Firm ◗11:00 a.m. What Should You Tell Your Clients ◗1:00 p.m. Address About Prop 65 Lunch Stephen T. Holzer, Lewitt Hackman 1 MCLE Hour ◗2:00 p.m. City Prevention of Substance Abuse ◗12:00 noon David S. Kestenbaum State, Zip Code Lunch Sponsored by Breathe Easy Insurance 1.5 MCLE Hours (1 Hour Competence ◗1:00 p.m. Issues and .5 General) Phone Eliminating Sex Harassment, Discrimination, and Bias in ◗3:30 p.m. Email the Workplace Human Lie Detector Paul Bishop Hannah Sweiss and Amy I. Huberman State Bar No. Lewitt Hackman 1 MCLE Hour 1 MCLE Hour (Recognition and Elimination of Bias MCLE MARATHON Bar Admission Date _____ / _____ / _____ in the Legal Profession and Society) REGISTRATION FEES Member Non-member Area of Practice ◗2:00 p.m. 2-Day Seminar $199 $499 Growing Your Practice Th rough or Litigation Finance Membership Dues: $ Friday, January 12 $149 $279 Charles Brown, Pravati Captial 1 MCLE Hour Saturday, January 13 $149 $279 Total Enclosed/To be Charged: $ or ◗ 3:00 p.m. Per MCLE Hour $40 $69 Credit Card #______- ______-______-______Tax Reform Update: Class Attending Th e Eff ect on You and Your Clients Late Registration Fee $40 $60 Georgette Greene, CPA CVV code Hutchinson and Bloodgood LLP, MCLE Self-Study $169 $169 Certifi ed Public Accountants and Flash Drive (with Marathon Registration) Expiration Date _____ / _____ / _____ Consultants 1 MCLE Hour MCLE Self-Study $219 $299 Flash Drive Only Signature
12 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org SOCIAL BRIEFS
NNOVEMBEROVEMBER 115,5, 22017017 SSEPTEMBEREPTEMBER 229,9, 22017017 OOCTOBERCTOBER 11,11, 22017017 SFVBA officer Barry P. Goldberg and Attorney Referral Service is trustee Amanda Marie Moghaddam attending Van Nuys Arts Festival of Nemecek and Cole with LA Family at Van Nuys Civic Center. SFVBA Immediate Past President Housing Director of Community Kira Masteller and Probate & Estate Engagement Ella Boyajian, who Planning Section Chair Nancy addressed the Board last night Reinhardt honored retired member, about the homeless service provider’s and frequent lecturer, James Birnberg holiday gifts program and new for his service to the Bar and Section. campus. Trustees brought toiletries to donate to residents of its shelters.
Valley Lawyer 22018018 EEditorialditorial CalendarCalendar 2018 ISSUE COVER STORY MCLE ARTICLE/SPECIAL FEATURES January Diversifying the Bench and Bar Websites and the ADA Sexual Harassment and Confi dentiality February Judge of the Year Agreements Roundtable: Mentoring New Lawyers March Fastcase Electronic Evidence and Social Media April Are You Kidding? Silly Cases Squeezing the Most Out of California’s Lemon Law May Fee Arbitration Program Eminent Domain Point/Counterpoint: Bail Reform June Senior Members: The Way It Was Gauging Diminished Capacity July Trustee Candidates Off the Rails: Theme Park Rides and Safety Liability August Pets of the SFVBA Maintaining Client Confi dentiality (Ethics) Roundtable: Class Action Lawsuits September Meet New Bar President Yi Sun Kim Mechanic’s Liens October Managing Business Disasters Representing Disaster Victims November Interviews with Past Bar Presidents Effective Brief Writing Point/Counterpoint: Legalized Marijuana December Cover Auction Estate Planning for Beginners Articles are not limited to content focus. Valley Lawyer seeks articles covering all areas of law, plus articles focusing on the courts and judiciary, lifestyle, law practice management, social media and legal marketing, as well as humorous commentary about the practice of law. Submit articles and ideas to [email protected]. Word count for feature article is 1,500-3,000 words; word count for MCLE article is 3,000-4,000 words, including 20 true and false questions for MCLE test.
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 13 By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for the credit, please follow the instructions on the test answer form on page 23.
Avoiding Liabilities from Environmental Agency Investigations
By Gary A. Meyer
14 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org MManufacturersanufacturers aandnd bbusinessusiness oownerswners mmustust eeducateducate ttheirheir mmanagersanagers aandnd ootherther eemployeesmployees oonn hhowow ttoo ccomplyomply wwithith tthehe mmyriadyriad ooff ffederal,ederal, sstatetate aandnd llocalocal eenvironmentalnvironmental llawsaws aandnd rregulationsegulations ggoverningoverning tthehe cclassilassifi ccation,ation, ddocumentation,ocumentation, sstorage,torage, aandnd ttransportationransportation ooff hhazardousazardous wwasteaste aandnd mmaterials.aterials. TThishis aarticlerticle pprovidesrovides ttipsips aandnd sstrategiestrategies oonn hhowow bbestest ttoo aavoid,void, mminimizeinimize aandnd pprotectrotect aagainstgainst ggovernmentovernment environmentalenvironmental enforcementenforcement liabilities.liabilities.
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 15 HOUSANDS OF BUSINESSES IN THE SAN all chemicals and hazardous materials used in their Fernando Valley, and tens of thousands more manufacturing or other business processes. throughout Southern California, are subject to For example, businesses which handle volumes environmental enforcement liabilities either due to their use of hazardous materials in excess of those allowed in a of hazardous materials, their environmental management reporting year–55 gallons of liquid, 500 pounds of solids or practices, or hazardous materials found at their facilities. 200 cubic feet of compressed gas–must prepare and have Businesses, as well as their corporate offi cers, a statutorily required Hazardous Material Business Plan managers and employees, are subject to a myriad of (HMBP), as laid out in California Health and Safety Code federal, state and local environmental laws and regulations, §25501 et seq., on fi le with a designated hazardous material with numerous governmental agencies and prosecutorial agency such as their local fi re department. offi ces empowered to enforce those mandates. An HMBP carefully and accurately lists the hazardous The lengthy list of responsible agencies includes the materials present in the workplace, details proper waste Environmental Protection Agency (EPA), Department of classifi cation and labelling, and contains the material safety Justice, and FBI at the federal level; CalEPA, Department data sheets (MSDS) available for each material in question. of Toxic Substances Control (DTSC), several regional water In addition, businesses using hazardous materials or quality control boards, and the California Attorney General’s generating hazardous waste need to verify that they have Offi ce at the state level; as well as the County and City obtained all the necessary environmental permits required Attorney Environmental Enforcement Units and County and for the use, storage, transportation discharge, and disposal City Hazmat Health Departments at the regional level– of said materials or wastes. agencies which have in their collective arsenals a dizzying While non-compliance with the rules mandating the array of administrative, civil and criminal penalties and fi nes, maintenance of records and documents and permits as well as injunctive remedies, to pursue both corporate and may seem like mere paper violations, environmental individual violators. regulators and prosecutors often take such non-compliance Cloaked in broad enforcement and prosecutorial very seriously. A fundamental underpinning of many powers, these agencies and their prosecutorial arms environmental laws and regulations relates to a company’s are known to push for stringent remediation remedies, obligation to have and maintain an accurate accounting of costly fi nes and penalties, and sometimes jail time against the materials and chemicals it uses, handles, stores and/or corporate offi cers and compliance managers. In Los discharges at or from the workplace. Having such information Angeles, both the City Attorney and the District Attorney is deemed critical to environmental agencies as it helps oversee special units that deal solely with environmental to safeguard and minimize actual or potential injuries from enforcement and often are part of and coordinate with occurring to employees, fi rst responders and neighboring representatives from other agencies throughout the state. properties. The focus of this article is to provide tips and strategies More than just having the requisite environmental on how best to avoid, minimize and protect against these documents referenced above, it is vitally important that a government environmental enforcement liabilities. company’s hazardous material record-keeping be accurate. While a minor miscalculation or inaccuracy may be forgiven, Big-Ticket Environmental Activities anything resembling false or misleading record-keeping will Virtually every aspect of hazardous waste and material likely result in serious legal ramifi cations. management–from record-keeping, manifesting, and Examples of misreporting or fraudulent record-keeping labeling, to storage, treatment, transportation and can include the mischaracterization of hazardous waste disposal–is subject to regulation and enforcement, bound for disposal as a non-hazardous waste; under- with violations in any of these activities covered by reporting the amount of chemicals being stored or the volume comprehensive administrative, civil and even criminal of waste being discharged or emitted; or the tampering with penalty provisions. Accordingly, the fi rst and most monitoring equipment, which results in false or inaccurate fundamental thing a business owner or manager should reports. Implementing in-house quality assurance controls do is be aware of, understand and properly inventory and keeping regular maintenance and controls on all
Gary A. Meyer is a Principal of the Law Firm of Parker, Milliken, Clark, O’Hara & Samuelian and is the founding Chair of the fi rm’s Environmental Law Department. He was recently selected as Environmental Attorney of the Year by the Los Angeles Business Journal. He can be reached at [email protected].
16 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 17 environmental waste management equipment can help Asbestos Removal, Demolition, and Disposal prevent unintended inaccurate or misleading record-keeping. Another red fl ag for criminal prosecutions involves the Other environmental activities can trigger investigations handling of asbestos or asbestos containing materials, also from agencies and lead to civil or criminal penalties. known as ACMs. Many buildings and building materials constructed prior to 1979 contain the now-heavily regulated Waste Discharge into Public Sewers insulation material. Dealing with asbestos is often an issue Companies that, for instance, produce wastewater through when dealing with building improvements, restorations, their metal plating operations are particularly in the zone for or demolition. It is important that ACMs–if removed or potential environmental investigations. Discharged waste disturbed during renovation, construction, or roofi ng or water must be checked regularly for pH levels and heavy fl ooring removal–be handled by companies licensed to metal content. Environmental investigators can and often handle asbestos-related projects. do test a company’s waste water fl ow off-site without a company’s knowledge, with test results showing evidence of Transportation and Manifesting illegal discharges can lead to criminal prosecution. One of the most common violations involves the transportation of hazardous waste without a proper license On-Site Spills or properly documented hazardous waste manifests. In the course of a company’s business activities, such as Generators of the waste being transported can be held the manufacturing, storage of chemicals, and transportation liable for the violations of the transportation companies of materials, on-site spills can and do frequently occur. they engage or the disposal facility where their waste is For a business with a long history at a single site, these processed. It is critical, therefore, that a company hires a spills may have occurred long before the passage of properly licensed fi rm to remove, transport and dispose of the hazardous waste laws in effect today. Nevertheless, its waste materials. environmental prosecutors have taken the position that spills, even occurring decades ago and still not cleaned up, Profi t Motive can constitute an act of illegal disposal. While such cases If an investigation leads to the suspicion that sloppy or may or should be more appropriately handled pursuant otherwise improper waste management was motivated by to an administrative cleanup and abatement order, they profi t considerations, it becomes more likely that criminal sometimes lead to the fi ling of criminal charges. charges may be fi led. Regulators often associate a profi t Accordingly, remediating spills and maintaining clean motive when a company takes short cuts in order to save housekeeping practices and containment is important to money. Such short cuts, they argue, include previously prevent government scrutiny and possible enforcement mentioned pirate pipes or bypass hoses, or the hiring of penalties. unskilled, improperly trained workers to handle a company’s on-site waste activities. Regulators will also look warily at On-Site Containment and Discharge Pipes acts they suspect involve concealment or conspiracy, such If a waste or chemical fl ow is being managed, stored, as the blending of hazardous waste with regular trash to treated, or transported on-site through a piping system, it is avoid payment of expensive hazardous waste disposal fees. important to check for leaks and determine eventual fl ow or discharge points. Prosecutors often look for so-called pirate Environmental investigations and the enforcement pipes or a bypass pipe or hose, alleging that the company liabilities which often result from them can be triggered by is trying to manage or dispose of its waste in an improper or a company’s long history of non-compliance, even of minor covert fashion. violations, leading to an agency’s view of that company as a “recalcitrant” or habitual violator. It is not at all uncommon Storage of Drums for federal, state, regional and local agency representatives The sight of dozens of 55 gallon drums stored on-site can to share a company’s reputation as a bad actor, with a long trigger close scrutiny by regulators. This is especially so if history of non-compliance–a situation that can result in that the storage occurs near a facility’s property line, railroad company’s next violation leading to a much more severe tracks, or a ditch or drain that leads off-site. Attention should penalty than would otherwise had been the case had the therefore be given to having any hazardous materials held company maintained a more reputable compliance history. in properly conditioned, labelled, stored and documented An unwanted investigation can also result when a current drums, with lids in place. Improperly stored waste can trigger or former disgruntled employee blows the whistle, and reveals a host of criminal violations for exceeding 90-day storage to regulators his company’s past or current illegal hazardous limits and illegal disposals, as well as the obvious risk of fi re, materials practices. So too can a competitor be the source of explosion, or injury. information leading to an inspection or investigation.
18 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org Another reason a business becomes targeted for an investigation is simply due to the type of business it operates. For example, specialized environmental task My wealth. My priorities. forces have been assembled in recent years to inspect and investigate such industries as metal platers and recycling My partner. facilities. These are operations, whether small businesses or larger companies, which use and handle a variety of You’ve spent your life accumulating wealth. hazardous materials and are viewed by enforcement And, no doubt, that wealth now takes many forms, agencies as low hanging fruit for enforcement. sits in many places, and is managed by many The release of chemicals resulting from a fi re, spill or advisors. Unfortunately, that kind of fragmentation explosion can also be expected to receive a high degree creates gaps that can hold your wealth back from of scrutiny from enforcement agencies. While some of its full potential. The Private Bank can help. these events genuinely result from unforeseen accidents To learn more, contact: or circumstances, they often prove to be the result of Doreen Berke, VP, Private Banker, 818-995-2222 poor management, inadequate training, equipment failure, Marina Greenberg, VP, Private Banker, 818-995-2224 or human error or negligence. Inspections will often “drill Encino Branch, 16633 Ventura Blvd., Encino, CA 91436 deep” to fi nd fault, which of course, can be expected or visit unionbank.com/theprivatebank to lead to increased penalties or even potential criminal liability. As described above, environmental liabilities can attach to, literally, every aspect of handling hazardous materials–storage, generation, labelling, documentation, transportation, discharge, and disposal. Even the handling Wills, trusts, foundations, and wealth planning strategies have legal, tax, of building materials such as ACM, lead or PCBs–all of accounting, and other implications. Clients should consult a legal or tax advisor. which can be released during renovation, construction ©2017 MUFG Union Bank, N.A. All rights reserved. Member FDIC. Union Bank is a registered trademark and brand name of or demolition activities—must be done with care and in MUFG Union Bank, N.A. compliance with special handling practices. Business owners, operators, managers and employees need to be aware of, plan for, and be prepared to implement various critical protocols in the event of an environmental inspection or investigation.
Inspection Time: Following Protocols There are a number of preventative strategies that can be put into play when government health inspectors knock on your company’s door, request a tour of your facility, scrutinize your materials manifest and other records, and, possibly, collect a battery of soils samples. What are your rights and the rights of the inspector in such a situation? The inspection rights afforded health offi cials under California’s Health and Safety Code §25185 are quite broad. However, the California Court of Appeals has ruled that such rights are not limitless and that an inspector must obtain a search warrant before entering a business’ premises if environmental criminal violations are suspected.1 Nevertheless, it is important for businesses to have an environmental protocol in place in anticipation of an inspector’s knock on the company’s door. Such a protocol should include detailed preparations in the event of a site visit, with a predesignated corporate team available to accompany the inspector comprised of individuals fully briefed on the company’s operations and able to accurately www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 19 and fully answer any questions or concerns. Responding modest or potentially much larger and take the form of to the inspectors’ concerns and providing any requested administrative, civil or criminal penalties. While a negligent documentation can help dispel further issues the inspectors company’s history of environmental non-compliance may may have and also help narrow the focus of the inspection. be too much to overcome by simply good faith cooperation It is also good practice to request an opening during and after an inspection, many investigations conference with the inspectors to ask for the reason for the have enough gray area that post inspection strategies inspection, and the nature and scope of their visit, especially implemented by the regulated entity can prove helpful in if it was not pre-planned. This can help prevent a wild goose minimizing its liabilities. chase inspection without pre-determined boundaries. In addition to the protocols addressed above, a Similarly, it is wise to request that the inspectors follow business subjected to an environmental investigation should the company’s safety protocols during their visit. This may retain counsel experienced in such matters and, if need be, help to keep the inspection within certain physical areas of environmental professionals with experience and knowledge the facility. Because memories fade and perceptions of what regarding the compliance items at issue. was seen vary from person to person and from time to time, While the scope and purpose of each environmental company representatives should try to create a mirror image inspection or investigation will vary, the target company’s of what the inspectors observed. This includes requesting master objective plan should include the following. copies of all photos the inspectors take, asking for and First, ensure that appropriate steps are taken to obtaining split samples, taking complete and accurate notes safeguard the health and safety of its employees and others of what was said and the observations who may be impacted by any releases which have made, and obtaining a copy of the or may occur, or by work practices which inspection report. may need improvement. Failure to make At the close of the inspection necessary changes or improvements, it is good practice to ask for A conference at the or a company’s denial that there is a closing conference to allow conclusion of the inspection anything wrong, will likely lead to company representatives to answer additional types of liabilities that can questions or address concerns the may present a good take the form of third-party lawsuits, inspectors may have, and request opportunity to clarify with increased remediation costs in the any clarifi cation regarding any follow- any misperceptions or event of a spill or release, and more up information or documentation the serious agency penalties. inspectors may request. Answering misunderstandings…” Second, it is important to questions and resolving issues early on thoroughly evaluate, with the assistance of helps keep the focus of the inspection more environmental counsel and consultant, the nature narrow and lessens the chance the inspecting agency’s and scope of the company’s actual or prospective areas of concerns will be fueled. non-compliance. Is record-keeping in place and accurate? A conference at the conclusion of the inspection Have all required permits been obtained? Are they current may also present a good opportunity to clarify any and have proper notice and disclosures been made? Are misperceptions or misunderstandings the inspectors may containers containing hazardous wastes or hazardous have regarding the company’s operations. For example, the materials in good condition, bermed, properly labelled and inspectors may have noticed piping or valves which they stored? Have any spills or releases been properly cleaned may mistakenly identify as pirate piping or accumulated up? And are the wastes or byproducts from the company’s other evidence of past or ongoing illegal disposal practices. operation being properly identifi ed, transported and It may be, however, that such equipment is only a remnant disposed of? from past operations that has been properly capped off and Third, the company should create a strategic plan on unused for some time. how best to communicate and otherwise deal with the Clarifying any such misperceptions can make a big inspecting agency or offi ce. In this regard, it is important difference as to whether the inspectors will enlarge the to fi rst try to learn from the government the scope of the scope of their investigation and/or communicate inaccurate investigation and potential case. This involves trying to information about the company’s practices to their ascertain whether the government is contemplating a enforcement supervisors, the prosecutor’s offi ce, or other “don’t let it happen again” warning, an administrative agencies. or civil penalty including injunctive relief, or, perhaps, a The interaction a company has both during and criminal fi ling. following the inspection can be a big factor in whether Depending on what information the agency penalties are assessed and, if so, whether they are representatives or prosecutor’s offi ce may be willing to
20 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org provide, it is advisable to establish a good faith dialogue and the court’s ruling can signifi cantly alter the case; or did the take the opportunity to educate the government of any company just fi nish remediating the spill at issue, thereby mitigating or exculpating factors which may apply, including establishing good will with the investigating agencies. the applicability of any legal exemptions and other defenses, Because the prosecutor typically represents the and any other helpful facts or evidence they may not be environmental agencies investigating the case, it is important aware of. to try to establish a positive, communicative relationship For example, the investigating agency may be building and damage control with these agencies’ representatives its case based on an inaccuracy, such as the charge that as well. the company did not have the requisite environmental Most cases do settle, but usually only after a rather permits. Or their case may be based on their incorrect lengthy pre- and post-fi ling process of motions, discovery, assumption that a by-product constituted a hazardous communications and education. The main component of waste when in fact the materials at issue tested as non- most settlements routinely involve the following: hazardous. There is, of course, a strategic balance which needs to Individual vs. Corporate Liability. As most cases name occur between revealing too much information upfront or individuals as well as a corporate entity, sometimes a holding back some in reserve for a later time. As a general corporation will decide to take a plea as a trade-off for rule, meeting with the regulators and prosecutors is usually the dismissal of the case against an individual defendant. However, such horse-swapping does not always apply, most effective once the defense has thoroughly investigated especially if the corporation is concerned with the effect the underlying facts and circumstances and can present a plea will have on its permits or government contracts. its case to the prosecutor. Meetings between counsel, as Accordingly, a settlement with the federal EPA to avoid well as all the individuals involved, can also be helpful in government contract suspension or debarment may be bringing about settlement. Well-planned and documented advisable. meetings can help create a positive rapport and go a long way in repairing poor relations and communications with the Felony vs. Misdemeanor. Many charges are “wobblers,” regulators. As stated, such a meeting can also help educate which can be fi led as either misdemeanors or felonies. the prosecutor of mitigating or exculpatory factors. A prosecutor may, therefore, be willing to reduce a There is, or course, a risk to showing too much of your defense hand or of over-selling your defense, making it important to establish and maintain credibility. A defense counsel’s win at all costs attitude must be tempered with integrity, accuracy, thoroughness, and credibility to be effective. Among the issues often discussed at such meetings include: are the prosecutor’s incorrect determination of the toxicity or hazardous nature of waste at issue; the inspectors’ factual inaccuracies or misperceptions of the company’s operations; the elimination of individual liability of corporate offi cers or employees; negotiations regarding downgrading felony charges to misdemeanors; a criminal fi ling to a civil or administrative fi ne; the future commitments the company will make toward compliance, remediation which needs to occur; and any changes which need to be made in the company’s operations.
Arriving at a Settlement: Dollars and Sense The settlement of a case is a process which takes time. Accordingly, the development of trust between counsel, despite the adversarial relationship, is important. Often, several meetings spaced out throughout appropriate times during a case is necessary. The dynamics of each meeting will often differ depending on what is developing with the case at any given time, i.e., did the defense just win a motion; or is it a week before an important hearing in which www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 21 felony charge to a misdemeanor to facilitate settlement, Other Terms of Endearment. In addition to the amount as the burden of proving a felony, with a higher mens rea of a penalty, to whom it is paid, and the party charged requirement, is more diffi cult. with paying it, other important settlement terms include the following issues: injunctive terms; remediation Criminal vs. Civil. On occasion, a criminal fi ling can be requirements; the possibility of future expungement; the settled by means of civil resolution. A mechanism often option to plead no admission of liability, keeping terms of used is a settlement based on a Business and Professions settlement confi dential; and an agreement to mediate to Code §17200 fi ling, which addresses unfair business resolving future problems involving terms of the settlement. advantage, or California Penal Code §§1377-1378, which allows for a civil compromise of a misdemeanor. The The Morning After: Now What? trade-off can often be seen in the amount of settlement It is important to monitor compliance with the terms of dollars. injunction and other compliance terms to avoid recidivism and Payoff. Settlement negotiations often deal with how enhance the opportunity for expungement. If there are changes payments are characterized, e.g., administrative costs in a company’s in-house or off-site management personnel, be or fi nes, investigative costs, charitable donations with a certain the new team understands and follows through on the tax write-off, or creation of an environmental remediation fi rm’s settlement commitments. fund. Although a good settlement often results in neither Review of IRS Code 162, which lays out the party being truly satisfi ed, it is best to establish a win-win requirements for business expense deductions, can attitude and keep positive relations with both regulators and be instructive, as can an understanding that the prosecutors. characterization of the fi ne can be just as important as If settlement terms require compliance over an extended the amount. Issue can also arise over any pet projects period, schedule periodic meetings both in-house and with which receive funding, as settlement funds earmarked for the appropriate regulators to keep tabs on the progress of agency training and education programs and other local compliance and other requirements. projects are often appealing to local prosecutors. 1 See Los Angeles Chemical Co. v. Superior Court, 226 Cal.App.3d 703 (1990).
22 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org MCLE Answer Sheet No. 110 Test No. 110 INSTRUCTIONS: 1. Accurately complete this form. 2. Study the MCLE article in this issue. This self-study activity has been approved for Minimum Continuing Legal Education 3. Answer the test questions by marking the (MCLE) credit by the San Fernando Valley Bar Association (SFVBA) in the amount appropriate boxes below. of 1 hour. SFVBA certifies that this activity conforms to the standards for approved 4. Mail this form and the $20 testing fee for education activities prescribed by the rules and regulations of the State Bar of SFVBA members (or $30 for non-SFVBA California governing minimum continuing legal education. members) to: San Fernando Valley Bar Association 1. Only corporate officers and managers and 11. Environmental investigations can be 5567 Reseda Boulevard, Suite 200 not employees are subject to complying with triggered from a company’s history of just Tarzana, CA 91356 environmental laws and reputations. minor violations. ❑ True ❑ False ❑ True ❑ False METHOD OF PAYMENT: Check or money order payable to “SFVBA” 2. In California, only state environmental 12. Certain business operations such as metal Please charge my credit card for agencies such as Cal/EPA have jurisdiction platers or recycling facilities have been the $______. over the enforcement of hazardous waste target of environmental task forces which laws. inspect such businesses. ______❑ True ❑ False ❑ True ❑ False Credit Card Number Exp. Date
3. Environmental violations can result in 13. In California, an inspector need not obtain a ______administrative, civil and/or criminal penalties search warrant before entering a business’ Authorized Signature and fines. premises if environmental criminal violations ❑ True ❑ False are inspected. 5. Make a copy of this completed form for ❑ True ❑ False your records. 4. In Los Angeles, both the City Attorney and 6. Correct answers and a CLE certificate will be mailed to you within 2 weeks. If you District Attorney Offices have special units 14. When an environmental agency representative conducts an inspection have any questions, please contact our dedicated specifically to the enforcement of office at (818) 227-0490, ext. 105. environmental laws and regulations. the company should allow the inspector ❑ True ❑ False unfettered access. ❑ True ❑ False Name______Law Firm/Organization______5. Virtually every aspect of hazardous waste 15. During an inspection it is good practice for the ______management is subject to regulation and company to request copies of all photos taken Address______enforcement except for paper violations such by the inspector and to ask for split samples of City______as record-keeping or labeling. any tests taken. State/Zip______❑ True ❑ False ❑ True ❑ False Email______Phone______6. Businesses handling in excess of 55 gallons 16. Asking for and holding a conference with State Bar No.______of liquid constituting a hazardous material the inspector at the conclusion of the within a reporting year, but under 500 inspection presents the company with a good ANSWERS: pounds of waste solids, are not required to opportunity to answer questions and clarify Mark your answers by checking the appropriate have a Hazardous Materials Business Plan on any misunderstandings the inspector may box. Each question only has one answer. file at its business. have about the company’s operations. 1. ❑ True ❑ False ❑ True ❑ False ❑ True ❑ False 2. ❑ True ❑False 7. On-site spills of hazardous materials 17. After an environmental inspection a company ❑ ❑ are viewed by environmental agencies should refrain from making any corrections or 3. True False or prosecutors solely as a clean-up or improvements to its operations as this may be 4. ❑ True ❑ False remediation matter and not potentially as construed as an admission of liability. 5. ❑ True ❑ False conduct which can lead to a criminal filing. ❑ True ❑ False ❑ True ❑ False 6. ❑ True ❑ False 18. At an appropriate time after an investigation 7. ❑ True ❑ False 8. Environmental investigators can test a or after a notice of violation has been issued, it company’s wastewater flow off-site without can be helpful to meet with the inspector and/ 8. ❑ True ❑ False a company’s knowledge and such test or the environmental prosecutor who may 9. ❑ True ❑ False results showing either elevated pH levels or be considering filing charges to discuss any high heavy metal content can subject the inaccurate information or misunderstandings 10. ❑ True ❑ False company to civil or criminal penalties. they may have about your operations or waste 11. ❑ True ❑ False ❑ True ❑ False management practices. ❑ True ❑ False 12. ❑ True ❑ False 9. Hazardous waste generators can be held 13. ❑ True ❑ False liable for the violations of the transporters 19. Many environmental violations can be they hire to move their waste. charged as either misdemeanors or felonies 14. ❑ True ❑ False ❑ True ❑ False (“wobblers”) and sometimes prosecutors 15. ❑ True ❑ False may be willing to reduce a felony charge to a 10. Asbestos containing materials if removed misdemeanor to facilitate a settlement. 16. ❑ True ❑ False from the roof or the flooring of commercial ❑ True ❑ False 17. ❑ True ❑ False buildings do not need to be handled by 18. ❑ True ❑ False companies specifically licensed to do 20. If a corporation is charged with an such work. environmental crime, it will insulate a 19. ❑ True ❑ False company individual from any such charges. ❑ True ❑ False 20. ❑ True ❑ False ❑ True ❑ False www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 23 A LLawaw FFirmirm tthathat DoesDoes WWellell BByy DDoingoing GGoodood By Michael D. White
Photos by Ron Murray
24 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org FForor tthehe ppastast 2255 yyears,ears, tthehe NNorthridge-basedorthridge-based llawaw firmfirm ofof KantorKantor & Kantor,Kantor, thethe winnerwinner ofof thisthis yyear’sear’s VValleyalley LLawyerawyer ccoverover aauctionuction bbenefittingenefitting tthehe VValleyalley CommunityCommunity LegalLegal Foundation,Foundation, hhasas wovenwoven thethe conceptconcept ofof findingfinding justicejustice forfor tthosehose wrongfullywrongfully denieddenied theirtheir disabilitydisability andand eemployeemployee bbenefitenefit cclaimslaims bbyy ssomeome ooff tthehe nnation’sation’s largestlargest insuranceinsurance companiescompanies intointo itsits vveryery reasonreason forfor being.being.
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 25 ALT WHITMAN WROTE expressly provided for these types of “It’s the moment on the stand when more than 150 years ago, benefi ts and the woman had complied you get the person to admit that they “Judging from the main with all of her obligations laid out in are guilty, that fl ashy kind of Perry portions of the history of the world the policy. Despite submitted proof Mason justice that’s wrapped up in so far, justice has always been of her need for a care-giver from her an hour.” in jeopardy.” What was true then doctor, her daughter, and the care- Reality, though, she says, is far is, sadly, true now, particularly giver herself, her insurance company different. “We work long, hard hours when achieving justice–the quality denied the claim. digging and digging and justice seeps of being right and fair–involves Kantor & Kantor represented each out only after a lot of hard work,” she butting heads with some of of the individuals described above, says. “I always tell our lawyers to be the biggest and most powerful and in each case, obtained all of the better prepared than the other side insurance companies in the insurance benefi ts they were entitled every time they walk into court, get on country. to receive. the phone, or have a meeting.” Kantor & Kantor is a Northridge Being better prepared and willing law fi rm whose focus is on to work hard has paid off for the fi rm, obtaining justice for individuals which has built a sterling national wrongfully denied health, life, reputation by winning major suits on disability, and long term care behalf of clients whose insurance benefi ts from insurance companies, companies have failed or refused to or self-funded employer pay disability, health, life and long- benefi t plans. term care claims. Over the past 25 years, the fi rm After the tragic death of his wife has jousted with and won major several years ago, one John Doe settlement claims against some of sought payment of her $150,000 the country’s most powerful and life insurance policy, a melancholy, infl uential insurance companies, but common occurrence. But including Prudential, Blue Shield, despite his timely premiums and Mutual of Omaha, Metlife, Unum his disclosure of all the information Provident, Sun Life and Cigna. solicited by the insurer, the “You need to know more, husband’s claim was cut by more you need to dig deeper,” says the than $20,000. University of Virginia School of Law A doctor, rendered totally graduate. “You need to have more and permanently disabled from We take every one of our information and that’s how justice his former occupation as an cases seriously and we comes because you have to dig hard anesthesiologist due to severe for the truth.” depression and narcotic addiction, help people who are in Genuine justice only comes, found his insurance claims denied a tough spot.” Kantor says, “when you get beneath and his policy terminated despite the top layer of what’s going on. For the terms laid out in his policy. -Glenn R. Kantor our clients, you need to dig all the An 88-year-old woman way down and that’s why clients in submitted a claim to her insurer need don’t get justice unless they because she could no longer “When you’re young and wide come to a fi rm like ours because attend to her basic daily activities eyed, you think a lot about the TV we’re not just going to look at a denial and needed a home health aide to version of justice,” says Lisa Kantor, letter and say, ‘Oh, well, they say you assist her. Her long term care policy founding partner at Kantor & Kantor. can do a sedentary job and that’s too
Michael D. White is editor of Valley Lawyer magazine. He is the author of four published books and has worked in business journalism for more than 35 years. Before joining the staff of the SFVBA, he worked as Web Content Editor for the Los Angeles County Metropolitan Transportation Authority. He can be reached at [email protected].
26 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org bad.’ The insurance company reached represented hundreds of individuals that conclusion, but we dig behind it. with eating disorders who have We look at it in detail, take it apart and been denied life-saving treatment. analyze it and that’s hard work.” In 2011, in Harlick vs. Blue The fi rm’s reputation is built, in Shield of California, she won no small part, on her groundbreaking the fi rst federal appellate court work representing clients in the areas of ruling that mandated health plans mental health and eating disorders. in California must pay for all In 2007, Kantor won her fi rst medically necessary treatment for victory in an eating disorder case severe mental illnesses, including when she prevailed at the 9th Circuit residential treatment. on behalf of a young woman denied Later, Burton v. Blue Shield treatment by Kaiser for life threatening of California was the fi rst decision bulimia. Kaiser offered once a week interpreting Harlick, with the group therapy, which was wholly U.S. 9th Circuit Court ruling that inadequate care for the severity of California’s Mental Health Parity Act the illness. At the time of her victory, mandated that Blue Shield cover there were no lawyers focusing their “medically necessary treatment of practice in this area of the law. Kantor severe mental illnesses” under “the was quickly inundated with numerous same terms and conditions applied requests for representation. Over the to other medical conditions.” past ten years, she has successfully Other landmark cases taken on by Kantor include Rea v. Blue Shield, a class action that found the insurer must pay for medically necessary treatment, even though their plans specifi cally excluded it; Shepard v. United HealthCare, in which Kantor successfully petitioned the California Department of Managed Health Care on behalf of a client with anorexia being discharged from a residential care facility, forcing her insurer to agree to pay for her treatment; and Jacobs v. Kaiser Foundation Health Plan, which resulted in benefi ts for a client suffering from bulimia when her medical plan declined to refer her to an out-of-plan treatment facility and refused to pay for the cost of treatment. Another case–Thompkins v. We tell our associates BC Life & Health Insurance Co.– that they should be was the fi rst published appellate proud to be a lawyer decision in California for an eating disorder case where her client and proud of what was denied benefi ts for in-patient we do here.” treatment of bulimia. Very often, says founding -Lisa L. Kantor partner Glenn Kantor, “People will ask, ‘How can they deny me?
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 27 How can they do that?’ and my answer is almost always the same. They do it because they can; they do it because this law called ERISA gives them no reason not to deny your claim. There are no penalties. The best we can do is get you what you’re entitled to.” ERISA–the Employee Retirement Income Security Act of 1974–is a federal statute that sets minimum standards for most voluntarily established pension, life and disability, apprenticeship and health plans in private industry to provide protection for individuals in these plans. In effect, says Kantor, the most the court can force the insurance company to pay is the claim it should have paid in the fi rst place. “Why doesn’t that law get changed? Watch the news and you’ll see that very little can get fi xed because we’re so polarized,” says Kantor. “We can’t accomplish much on a nationwide basis these days, so we take cases one at a time.” Kantor’s clients “are inevitably all in pain,” he says, both physical and fi nancial. His clients all invariably view the entire insurance industry as some giant, evil, single-minded monolith. Drawing on the fi rm’s national reputation among the insurance industry as a fi erce, hard- charging advocate for the rights of the insured, Kantor quips that, “We love to be hated,” should be the fi rm’s tagline. But, he quickly adds, “I want to be fair, though. I’m not going to say that the entire insurance industry is a rotten thing. I tell every one of our clients that they’re here because their insurer denied their claim. There are hundreds of billions of dollars paid out in claims to people every year and they don’t come knocking on our door saying, ‘Will you sue them. They paid my claim.’ We see and deal with the dark side. The key is to know what you can accomplish and what you can’t, and to take on the cases where we believe an unjust denial of benefi ts has occurred. We are much more concerned that the facts support our client than the amount of money
28Photo Valley from Lawyerwww.kantorlaw.net ■ DECEMBER 2017 www.sfvba.org Where would the Kantors like to see their fi rm in ten years? “We’d like to see the fi rm continuing the legacy of seeking AUTOMOBILE justice for those who’ve been denied EXPERT WITNESS it,” says Glenn Kantor. “I see the young lawyers here now taking over, so we’re training some excellent lawyers to walk in our footsteps,” adding that a high value on client service mandates that two attorneys be assigned to every case in order to facilitate communication with the client. “Our clients’ interests come fi rst and we want there to be someone available for them any time they need to communicate with us.” Jack G. Cohen My parents are dedicated One of the young attorneys and I knew from a young continuing that legacy is Lisa’s 30 Years Experience in age that I wanted to do and Glenn’s son Andrew, a 2014 the Automobile Business graduate of the University of what they do…” California Irvine School of Law. Now an Associate, the Plaintiff and Defense -Andrew M. Kantor young Kantor–who also holds a graduate degree in Business Consulting with attorneys, Administration–worked at the fi rm dealers, consumers, at issue. A denial of a $200 a month as a client advocate before enrolling insurance companies benefi t to someone living on disability in law school. While attending Appraisals benefi ts can mean the difference UCI, he worked as a legal extern between their children eating two meals for Consumer Watchdog, a public Industry standards a day or three.” consumer organization specializing The 12-attorney fi rm is held, says in consumer-side insurance issues in Dealer fraud Lisa Kantor, “to a very high ethical and the class-action context. Vehicle sales and leasing professional standard and we get along He also used the ERISA and with most counsel on the other side,” disability claim experience gained Dealership practices to the point that, “We are often referred at both Kantor & Kantor and cases from defense counsel, judges, Consumer Watchdog to write a New and used auto and mediators. Those are the referrals highly-regarded seminar paper transactions of which we are the proudest. When the analyzing the incorporation of the Auto warranty issues professionals we work with recognize Racketeer Infl uenced and Corrupt our skill and determination, it tells us we Organizations Act (RICO) into Finance documentation are doing a good job. ” wrongfully denied insurance claims. and analysis Lawyers “sometimes have a “We take every one of our cases bad reputation, but here, we tell our seriously and we help people who Lender-dealer relationships associates that they should be proud are in a tough spot. We do what is Wholesale & Retail to be a lawyer and proud of what we best for them,” says Glenn Kantor. do here,” she says. “We help people “When we get to tell a client, ‘You Diminished value cases and we want our attorneys to feel good won…you’re getting your benefi ts... about what they’re doing and we also you get to have the surgery you want them to be active in the community need,’ the tears of joy are a OFFICE: 747.222.1550 and give back because you’re privileged wonderful thing to experience. It’s to have gone to law school and you’re a reminder that we can do well by CELL: 818.445.5500 privileged to be here.” doing good.” [email protected] www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 29 Stress Free Holidays: A PrimerPrimer forfor AttorneysAttorneys aandnd TheirTheir ClientsClients
By Vanessa Soto Nellis and Terri L. Asanovich
FTEN TIMES HOLIDAYS or not–how holiday time should be In addition, Family Court Services are stressful because idealized shared with family and friends is often can provide mediation for child expectations confl ict with a topic of disagreement. custody disputes at the courthouse, the reality of family and its cast of For families who want to work or consider the collaborative divorce characters. We would all love to sit together, there are several options process, where couples considering as a family and share a meal with for resolving how, and with whom, divorce can negotiate an agreement great conversation, but that may be holiday time should be spent.Try a with professional help, including unrealistic. Life is interesting because it new schedule, particularly if children collaborative lawyers, mental health is not perfect. are involved. Moving them between professionals and/or child custody It is helpful to see people as they various family members can be specialists. are during the holidays and manage diffi cult for all involved so it might be A willingness to try new things expectations, accept what you cannot best to come up with other ways to and compromise is key to coming up change, and, if you have never gotten spend quality time with loved ones, with a solution. In any event, schedule along with Uncle Bill, face the fact that perhaps invite them to come to you; appointments early, since therapists you probably won’t enjoy his company share another holiday with them; often take time off during the holidays this year. If your family is divided over visit when the children have a day off and it is important to schedule politics, then it may be a good idea from school and traffi c is not so bad sessions well in advance to allow to agree in advance that political and Facetime on the holiday; or work ample time to address issues. discussions are off limits. to resolve differences when parents are no longer together or if a child is What Can Be Done to Prepare for How Will Holiday Time Be Spent? unwilling to spend signifi cant time with the Holidays? For many families–whether divorced one parent. Be honest about who you want to
Vanessa Soto Nellis is a Certifi ed Specialist in Family Law at the Law Firm of Lewitt Hackman in Encino. She can be reached at [email protected]. Terri L. Asanovich is a Licensed Marriage and Family Therapist based in Sherman Oaks. She can be reached at [email protected].
30 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org spend time with during the holidays Los Angeles Crisis Hotlines and why, especially if being with family causes anxiety and stress. L.A. County Mental Health/Crisis Line ...... 800-854-7771 Another option may be to get out of Suicide Prevention Center (24 Hours) ...... 213-381-5111 town on vacation or volunteer to help Suicide Prevention Crisis Center (24 Hours) ...... 310-391-1253 a good cause to avoid dealing with Assaults Against Women Hotline (24 Hours) ...... 310-392-8381 extended family tensions altogether. Women and Children Crisis Shelter (24 Hours) ...... 562-945-3939 Inform family members in advance of Child Abuse Hotline ...... 800-540-4000 your plans so that they know what to Rape Treatment Center (24 Hours) ...... 310-319-4000 expect and can plan accordingly. Alcoholics Anonymous (24 Hours) ...... 213-936-4343 From a family law perspective, Cocaine Anonymous (24 Hours) ...... 310-216-4444 if parents have been involved in Narcotics Anonymous (24 Hours)...... 909-622-4274 a rancorous, less than amicable California Youth Crisis Line ...... 800-843-5200 divorce, it can only be hoped that Haven Hills Hotline, Domestic Violence ...... 818-887-6589 that those involved would put their Elder Abuse Hotline ...... 877-477-3646 or differences aside for the holidays and ...... 800-252-8966 suddenly make rational, child-centered Covenant House (for homeless and traffi cked youth) ...... 323-461-3131 decisions. However, that being A list of therapists experienced in family disputes can be found at unlikely, the parties should expect http://www.lacourt.org/fl resource/ui/fl 0107.aspx. continued tension during the holidays. One way to manage expectations and establish boundaries is to fi le a National Crisis Hotlines request for the court to decide the Brief intervention ...... 800-821-4357 children’s holiday schedule well in Child Abuse National Hotline ...... 800-252-2873 advance of the holidays. The parties Child Abuse ...... 800-422-4453 will be required to attend mediation Cocaine National Hotline ...... 800-262-2463 before the court hearing to attempt Children in Immediate Risk or Danger ...... 800-843-5678 to agree upon at least some holidays CyberTipline for Reporting the Exploitation of Children ...... 800-843-5678 in advance. If there is not a custody Domestic Violence Resource Hotline order, the requesting party will need (referrals for shelters and counseling in your area) ...... 800-799-7233 or to show what holiday schedule is in ...... 800-787-3224 (TDD) the child’s best interest as laid out in Friends of Battered Women and Their Children ...... 800-603-4357 1 Burchard v. Garay. Kid Help (Children and adolescents in crisis will receive If there is a fi nal custody order immediate help. Referrals to shelters, mental health services, sexual abuse in place, the requesting party will treatment, substance abuse, family counseling, residential care, need to show that there has been a adoption/foster care, etc.) ...... 800-543-7283 substantial change of circumstances NAMI Helpline National Alliance for the Mentally Ill ...... 800-950-6264 warranting a modifi cation, and why National Youth Crisis Hotline ...... 800-448-4663 that modifi cation is in the child’s best National Child Abuse Hotline ...... 800-252-2873 2 interests. National Mental Health Assn. (Provides free information on specifi c It is important to keep in mind that disorders, referral directory to mental health providers, national holidays are known well in advance directory of local mental health associations.) ...... 800-969-6642 so parents should not delay asking National Institute of Mental Health Information Line the court to intervene, as it is routinely (Provides information and literature on mental illness by diffi cult to schedule a court date during disorder–for professionals and general public.) ...... 800-647-2642 holiday seasons such as Thanksgiving Runaway Switchboard (Provides crisis intervention and travel and Christmas. The parties involved assistance to runaways. Gives referrals to shelters nationwide. can also retain a mutually agreed-to Also relays messages to, or sets up conference calls with, parenting plan coordinator with the parents at the request of the child. Has access to authority to resolve specifi c custody AT&T-Language Line.) ...... 800-621-4000 disputes when the parties cannot SAFE (Self-Abuse Finally Ends) ...... 800-366-8288 agree. This is often more cost effective Youth Crisis Hotline: Crisis Hotline for Runaways or Youth and often results in a faster decision. in Crisis ...... 800-448-4663 www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 31 Even if parents plan ahead, and tend to overspend in an effort to buy obtain a custody order or agree upon happiness. We often see this with ERISA a schedule, one or the other parent families in the process of a divorce. could disregard it, leading to holiday Reinforce to a client that material things LAWYERS confl ict. If this happens, communicate do not buy happiness. in a concise and amicable manner. For Don’t isolate yourself. Get out of example, if mom returns the child four the house or offi ce and take some time LONG TERM DISABILITY, hours late, then an equitable solution to honor lost or distant loved ones. It’s LONG TERM CARE, HEALTH, is that dad should keep the child for an normal to feel sadness and grief if you EATING DISORDER, AND LIFE additional four hours. Or perhaps the are separated from or have lost loved INSURANCE CLAIMS receiving parent has the next holiday ones. If it is not practical to be with the or makeup time. Frustrating visitation ones you love, make plans to celebrate WE HANDLE BOTH can be a basis to modify custody3 and again when time permits. ERISA & BAD FAITH a parent can be found in contempt of Continue healthy routines such MATTERS court for failing to follow court orders. as daily exercise and walking. “The rhythm and repetition of walking has Making It Personal a tranquilizing effect on your brain, • California Federal and What are some suggestions for coping and it decreases anxiety and improves State Courts with holiday stress?4 sleep,” says nutrition-and-wellness Understand that it’s critical to keep expert Ann Kulze, M.D. Aim for a brisk, • More than 20 years expectations balanced and half hour walk every day.5 experience realistic. One cannot get You can actually improve your everything one wants mood by taking something and some things will outside to read in the • Settlements, trials go wrong. Remember, sunlight. There is actually and appeals everything does not Trying to do too a type of depression called have to be perfect much during the SAD (seasonal affective and try not to holidays can add disorder) that some worry about things people experience due Referral fees as allowed that are out of fatigue on top of to shorter days or bad by State Bar of California your control. an already stressful weather during the fall and It’s also important situation.” winter months. to remember that Take some personal Handling matters families change and time every day for yourself and grow. This is especially true for be aware of post-holiday syndrome, throughout California families experiencing divorce, as which can occur when holiday activity holidays will be observed in a different suddenly ends, causing an emotional Thank You for Supporting Blanket the Homeless! way than in the past when the family letdown. To help alleviate post-holiday was intact. Encouraging clients to syndrome, plan a rest day towards pick some traditions and rituals and the end of the season to regroup and 818.886.2525 create some new ones can help re- emotionally and mentally prepare for inject specialness back to the holiday the New Year ahead. seasons. 1 Burchard v. Garay, 42 Cal.3d 531, 534 (1986). Trying to do too much during the 2 In re Marriage of Burgess, 13 Cal.4th 25, 37-38 holidays can add fatigue on top of an (1996). 3 Family Code §3040(a)(1); Catherine D. v. Dennis already stressful situation. Utilize time B., 220 Cal.App.3d 922, 927 (1990); see also In re management to pick and choose what Marriage of Wood, 141 Cal.App.3d 671 (1983). 4 Barton Goldsmith, Ph.D., “Ten Tools for Dealing www.kantorlaw.net things genuinely require attention. with Holiday Stress and Depression. May the Holiday This will help generate the energy to Season Touch your Heart,” PSYCHOLOGY TODAY Dedicated to helping people (December 21, 2011) https://www.psychologytoday. experience enjoyable activities with com/blog/emotional-fitness/201112/10-tools-dealing- receive the insurance holiday-stress-and-depression. family and friends. 5 benefits to which they Laurie Powlik-Kienlen, “25 Ways to Fight Holiday Create a reasonable budget and Stress,” HEALTH (November 1, 2016), http://www. are entitled health.com/health/gallery/0,,20306655,00.html#holiday- stick to it. During the holidays, people stress-busting-tips
32 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org BLANKET THE HOMELESS A Project of the San Fernando Valley Bar Association and the Valley Community Legal Foundation of the SFVBA
Share the spirit of the holidays. Help Blanket the Homeless when they need it most! SSinceince 11995,995, tthehe SSFVBAFVBA hhasas ddeliveredelivered mmoreore tthanhan 440,0000,000 bblanketslankets ttoo hhomelessomeless aandnd bbatteredattered wwomenomen ssheltershelters iinn tthehe SSanan FFernandoernando VValley.alley. SSFVBAFVBA mmembersembers aarere iinvitednvited ttoo aassistssist wwithith tthehe bblanketlanket ddistributionistribution aandnd vvolunteerolunteer fforor a llegalegal ccliniclinic oonn DDecemberecember 99,, 22017017 aatt 88:30:30 aa.m..m. aatt LLAA FFamilyamily HHousing,ousing, 78177817 LankershimLankershim Boulevard,Boulevard, NorthNorth Hollywood.Hollywood. TThankhank youyou forfor supportingsupporting BlanketBlanket thethe Homeless!Homeless! A $75 donation buys 10 blankets. Please accept my donation for $______.
Name______
Firm/Company______
Address ______
Phone ______Email ______
Credit Card No. ______Expiration Date______
Make checks payable to VCLF of the SFVBA. The Valley Community Legal Foundation (VCLF) of the SFVBA is a registered 501(c)(3) organization (Tax ID No. 95-3397334). Your contribution is tax-deductible to the extent allowed by law.
Mail donation to VCLF, 5567 Reseda Blvd., Ste. 200, Tarzana, CA 91356 or fax to (818) 227-0499. Online donations can be made at http://thevclf.org/blanket-the-homeless-fund.
For more information, please call (818) 227-0490. www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 33 §1102.5 permits employees to sue individual supervisors for violation of the statute.
Protected Activities Contrary to the fear of most employers, not all activities by employees are protected activity and create whistleblower liability. To be protected under the California law, an employee must engage in one of the following acts during the course of their employment:
Refuse to participate in an activity that would result in a violation of state or federal laws
Provide information to or testify before a public body By Ani M. Akopyan conducting an investigation, hearing or inquiry regarding the employee’s reasonably Blowing the Whistle based suspicions that a local, state, or federal rule has been in California violated Disclose information to a government, law enforcement N THIS DAY AND AGE OF In California, one of the most agency, or person with California employment law, many noteworthy whistleblowing statutes is authority over the employee employers and employees know Labor Code §1102.5. Enacted in 1984, who has the authority to what is and is not acceptable when the statute refl ects a “broad public investigate or discover or dealing with certain forbidden conduct, policy interest in encouraging workplace correct a violation, of the such as the prohibition against sexual whistleblowers to report unlawful acts employee’s reasonably based harassment or race discrimination. without fearing retaliation.”1 suspicion of illegal activity When it comes to whistleblowing, Labor Code §1102.5 prohibits or noncompliance of a local, however, many simply do not know an employer or someone acting on state, or federal rule or their rights or legal obligations. Of the employer’s behalf from retaliating regulation. It’s important to course, getting it wrong can lead to against an employee for having blown note that the employee does unnecessary stress, and even worse, the whistle, i.e., having engaged not actually have to make the result in costly litigation. With so much in a “protected activity.” This is a disclosure to be protected. It at stake, it is important to take a closer noteworthy distinction because, unlike is enough for the employer to look at this oft-litigated area of law. other forms of retaliation, Labor Code believe that the employee has
Ani M. Akopyan has been a labor and employment law litigator for over a decade and is a Senior Associate at Nemecek & Cole. She can be contacted at [email protected].
34 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org or may disclose such information action displease, offend, or anger the sometime in the future. employee.
It does not matter why the Employer’s Defenses to employee blew the whistle; as long as Whistleblower Claims they did. The employee’s motivation When faced with a §1102.5 claim, has no impact on the employer’s an employer is required to present a legal obligations. All that an employee legitimate, non-retaliatory reason for needs to show is that they had a the adverse employment action.6 reasonable suspicion that a violation Once that is done, it becomes of a constitutional, statutory, or the employee’s burden to prove that regulatory provision has occurred, the reason offered by the employer Official Sponsor of the SFVBA or that they refused to participate in is false, i.e., a “pretext,” and that Probate & Estate Planning Section an activity that could result in such a the adverse employment action was violation.2 “caused” by the employee’s protected Recently, §1102.5 was amended activity.7 As most employment to include whistleblower protections attorneys know, this is often the most for employees who have not litigated issue when dealing with such themselves engaged in the above- claims. listed protected activities, but their As is often the case, employees family members who have, or are do not have direct evidence that thought to have, engaged in such retaliatory action was caused by protected activities. their whistleblowing. Therefore, in It is important to note that the order for employees to prove their protections end once employment claims, they are often forced to rely ends. In particular, an employee on circumstantial evidence. This may cannot fi le a whistleblower claim for include the proximity in time between post-termination conduct, such as the protected activity and the alleged retaliatory defamation.3 retaliatory employment decision. For example, an employee may claim Prohibited Retaliation that after he refused to engage in An employee must also show that violations of the law at his employer’s their employer imposed an “adverse request, he was demoted from his employment action” because of the position. protected activity in order to have an In order to rely upon temporal actionable whistleblower claim. proximity alone to demonstrate According to Patten v. Grant Joint causation, an employee must show Union High School Dist., an “adverse a “very close” proximity in time MARGARITA F. BILLINGS employment action must materially between an employer’s knowledge Certified Escrow Officer affect the terms and conditions of the of protected activity and an adverse [email protected] employment.”4 Generally, a demotion, employment action.8 Some courts ENID TOBIAS reduction in pay, loss of benefi ts, have held that one month is Certified Escrow Officer cutting-of-hours, and termination adequate, while others have held [email protected] are viewed to be suffi cient adverse that a three month window is not 9 employment actions. However, not all suffi cient. This is usually the case 16101 Ventura Boulevard, Suite 324 employment actions are actionable, when there is evidence of other Encino, CA 91436 no matter how distasteful they may reasons for the conduct that’s been PH # 818 990 3565 be for an employee. For example, a deemed retaliatory. transfer or negative job evaluation Regardless, in order to establish is often treated as a personnel a causal nexus between the decision and not as whistleblower protected activity and the adverse retaliation.5 It is not enough that the employment action, it is essential that www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 35 the employee demonstrate that the Future of Whistleblowing employer was aware that the employee As discussed above, there have (or family member) had engaged in, or been recent amendments to Labor were going to engage in, a protected Code §1102.5 that have broaden its activity.10 Therefore, an employer may scope. Additionally, over the past try to defeat a whistleblower claim few years, many suits have been fi led by claiming a lack of knowledge or that have clarifi ed statutory confusion suspicion that the employee had ever and basically done away with a body engaged in a protected activity. of law that had previously required Another method employers often employees to first submit a claim defend against whistleblower claims is with California’s Labor Commissioner by demonstrating that the termination, before filing a whistleblower lawsuit, demotion, or other adverse i.e., an administrative exhaustion employment decision requirement. had nothing to With violations of do with the §1102.5 including employee’s …an employee must civil penalties of protected show a “very close” up to $10,000 activity and per violation, in was caused proximity in time addition to all only by other between an employer’s other penalties work-related, knowledge of protected and damages performance- that an employee based issues. activity and an adverse may be entitled to, For example, employment action.” liability for §1102.5 an employer can have serious may defeat a claim by consequences for employers demonstrating that a demotion and make for attractive claims by or termination was due to well- employees. documented performance deficiencies 11 or policy violations. 1 Green v. Ralee Eng. Co., 19 C4th 66, 77, 78 CR2d In the past, employers have also 16, 22 (1998). 2 Mize-Kurzman v. Marin Community College Dist., defended against whistleblower claims 202 CA4th 832, 850-852, 136 CR3d at 274-276 by arguing that the employee had (2012). 3 Hansen v. California Dept. of Corrections & not engaged in a protected activity Rehabilitation, 171 CA4th 1537, 1546, 90 CR3d 381, because the reporting or refusal to 387 (2008). 4 Patten v. Grant Joint Union High School Dist., 134 participate in the alleged unlawful CA4th 1378, 1387, 37 CR3d 113, 119 (2005). 5 Mueller v. County of Los Angeles, 176 CA4th 809, conduct was simply a part of the 822, 98 CR3d 281, 292 (2009). employee’s job. For example, an 6 McDonnell Douglas Corp. v. Green, 411 US 792, 802-803, 93 S.Ct. 1817, 1824-1825 (1973). employer would argue that a human 7 Bowen v. M. Caratan, Inc., 142 F.Supp.3d 1007, resources representative’s complaint 1031 (ED CA 2015). 8 Clark County School Dist. v. Breeden, 532 US 268, concerning payroll violations was 273, 121 S.Ct. 1508, 1511 (2001). simply part of “doing her job” as a 9 The temporal proximity issue has been litigated more thoroughly in Fair Employment and Housing human resources representative. claims. Richmond v. ONEOK, Inc., 120 F3d 205, However, as of the January 1, 209 (10th Cir. 1997)—3-month period not sufficiently close; compare Calero-Cerezo v. United States 2014 amendment to the Labor Code, Dept. of Justice (1st Cir. 2004) 355 F3d 6, 25—1 employers can no longer argue such month sufficiently close to create inference of causal connection. a defense because even if such 10 Morgan v. Regents of Univ. of Calif., 88 CA4th 52, protected activity could be deemed to 69-70, 105 CR2d 652, 666 (2000). 11 Unt v. Aerospace Corp., 765 F2d 1440, 1447 (9th be “part of the job,” it is still protected Cir. 1985); Flait v. North American Watch Corp., 3 and can form the basis of a legitimate CA4th 467, 479, 4 CR2d 522, 530 (1992). 12 McVeigh v. Recology San Francisco, 213 CA4th 12 whistleblower claim. 443, 469, 152 CR3d 595, 617-619 (2013).
36 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org ATTORNEY REFERRAL SERVICE
CATHERINE CARBALLO-MERINO A Rush to Judgment Averted ARS Referral Consultant
YEAR AGO, MELISSA’S LIFE COULD’VE been “It was a rush to judgment,” says ARS attorney Mark P. severely impacted had she not called the SFVBA’s Brandt. “They convicted her before fi nding out what happened Attorney Referral Service for a referral to a and they didn’t get her side of the story.” reputable, experienced attorney. While grocery shopping, The next day, Melissa called the ARS and was referred Melissa suddenly received several phone calls from her to Brandt, who presented her side of the story before the children and husband. prosecutor fi led a charge. Phone and medical records, Melissa’s husband–stricken with a severe medical documentation showing the lock had subsequently been condition that requires intensive care–had fallen from his replaced, statements from her children, husband and bed, but her children couldn’t enter the apartment to help husband’s doctor, and the necessary photographic evidence him. She had felt confi dent about a brief trip to the market, were gathered. Because of Brandt’s swift action on her behalf, relying on her children to get into the apartment should the case against Melissa was dismissed and her record anything happen. What she didn’t anticipate was a remained clean. broken lock that prevented them from being able to help Had Melissa waited even a few more days to call the ARS, their father. prosecutors might well have fi led a petty theft charge that There was too much noise in the market and her would have been more diffi cult to defend and she would have family were extremely distressed, making it diffi cult to had to rely on a court-appointed public defender. hear. Melissa stepped outside, remaining near the store’s “I help a lot of people and I like to help them,” says entrance. As soon as she stepped outside, though, a Brandt. “That means giving it [the case] a lot of my time…when security guard swooped in, claiming she had committed someone hires me, they are not hiring someone else to do the petty theft. job. They are hiring me.”
• SSENIORENIOR CITIZENCITIZEN LEGALLEGAL SERVICESSERVICES • MMODESTODEST MMEEAANSNS PROGRAMPROGRAM • SSPEAKERPEAKER BUBURREAUEAU • FFAMILYAMILY LLAAW LIMITEDLIMITED SCOPESCOPE RREPRESENTATIONEPRESENTATION
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 37 PHOTO GALLERY Installation Gala
38 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org Photos by Ron Murray PHOTO GALLERY
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 39 Valley Community Legal Foundation OF THE SAN FERNANDO VALLEY BAR ASSOCIATION
CHARITABLE ARM OF THE SFVBA SUPPORTING LEGAL NEEDS OF VALLEY YOUTH, DOMESTIC VIOLENCE VICTIMS, AND VETERANS WORKING WITH JUDGES AND OTHERS IN THE VALLEY LEGAL COMMUNITY SPONSORING TEEN COURT CLUBS AND LAW MAGNETS AT 9 VALLEY HIGH SCHOOLS PROVIDING EDUCATIONAL GRANTS FOR LEGAL CAREERS SUPPORTING LAW-RELATED PROJECTS IN THE VALLEY ASSISTING VALLEY RESIDENTS IN NEED
VCLF SUPPORTS THE FOLLOWING ORGANIZATIONS
OF SAN FERNANDO VALLEY
RECENT SCHOLARSHIP RECIPIENTS INCLUDE STUDENTS AT
To donate to the VCLF or to learn more, visit www.thevclf.org and help us make a difference in our community
40 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org VALLEY COMMUNITY LEGAL FOUNDATION OF THE SFVBA
LAURENCE N. KALDOR Scholarship Recipient President Jennifer Ramos
ECEMBER IS TRADITIONALLY to and from school and my intense car As much as she loved participating celebrated in our community as sickness,” she says. in as many events as she could, her the season of giving and I can’t Aside from the neighborhood limited fi nances always posed an think of a better way to wrap up our issues of drugs, gangs and crime, as insurmountable hurdle. Although she calendar year than by expressing the fi rst generation immigrants, the Ramos remembers quite often feeling dejected, thanks of the Valley Community Legal family faced severe economic adversity she promised herself that her fi nancial Foundation for your generosity and by all of Jennifer’s high school years. To hardship would never prevent her from sharing the story of our third and fi nal achieving her full potential. 2017 scholarship recipient. Throughout her high school years, For most children in affl uent Jennifer took advantage of numerous neighborhoods, choosing a high school available free educational opportunities, is a relatively routine and banal process. as well as whatever extracurricular However, for Jennifer Ramos and others activities she could manage to afford, who grow up in economically-challenged including serving as co-president of conditions, the process of choosing a the speech and debate team and decent school can be daunting. participating in moot court, where she Jennifer was fortunate to be received accolades for oral arguments exposed to civics courses in middle presented in front of a panel of active school, an experience that spurred her attorneys, and in mock trials, where interest in studying law and government. she acted as an attorney for both the So much so, that when she graduated participate in almost any activity meant prosecution and the defense. middle school, she was determined to fees and costs that she simply did not Additionally, as a future community brave the often-grueling ninety minute have. For example, she recalls, “any leader, she also served as a member of commute to and from James Monroe event that I participated in for speech the Los Angeles Unifi ed School District’s High School. “The decision to commit and debate cost ten dollars each, and Superintendent Council and as an intern to the Law and Government Magnet felt when you are in three events, the cost for California State Assemblymember like the hardest decision I had to make at adds up because there are several Adrin Nazarian. “Throughout my the time because of the hassle of getting tournaments every year.” involvement in these activities, I have
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 41 learned how the government works, Awarding the three scholarships how to write legal briefs, and argue my this year, says VCLF President Laurence case. I’ve also written speeches that Kaldor, “has truly been the highlight of involve advocacy for legislative action,” my tenure at the Foundation. Six years says Jennifer. “This year my speech ago when I become a member of the was about voter suppression, where I Foundation, I was saddened to learn actually proposed a legislative solution to that the once thriving VCLF scholarship Congress.” program was becoming dormant. “When I took offi ce in 2015, I insisted Setting her sights even higher, that the program be reinstituted to its Jennifer is actively preparing for future fullest potential, albeit with the minimal Highest AVVO Rating 10.0 out of 10.0 challenges. “I have been given an funding and resources at the time,” he opportunity that my parents didn’t have says. “With your support we were able while they were growing up,” she says. “I to double our scholarship giving in 2017 am already settled in and doing extremely and I am proud to announce that we are WE RECOGNIZE THE FOLLOWING PRESIDENT’S 41 Years in practice well at UCLA. I will continue to pursue my on track to double our scholarship giving CIRCLE MEMBERS FOR THEIR DEDICATION TO Arbitrator for FINRA passions in the legal profession, which again in 2018.” will allow me to be a civic leader, giving From all of us at the Valley Community THE SFVBA AND THE COMMUNITY. back to my Valley community, and making Legal Foundation we wish YOU a happy a positive difference in the world and healthy holiday season and a most around me.” joyous and prosperous New Year! ABOUT THE VCLF OF THE SFVBA The Valley Community Legal Foundation is the charitable arm of the San Fernando Valley Bar Association, with a mission to support the legal needs of the San Fernando Valley’s Superlawyer – Securities Litigation youth, victims of domestic violence, and veterans. The VCLF also provides educational grants to qualified students who wish to pursue legal careers. The Foundation relies on donations to fund its work. To donate to the VCLF and support its efforts on behalf of the Valley community, visit www.thevclf.org and help us make a difference in our community. WHAT ARE YOUR ADVERTISING PLANS IN 2018? Visit www.sfvba.org for the Valley Lawyer Media Kit
Contact (818) 227-0494 to place your ad. Contact SFVBA Executive Director Liz Post at (818) 227-0494 or [email protected] to sign up your fi rm today! 42 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org WWEE RECOGNIZERECOGNIZE THETHE FOLLOWINGFOLLOWING PRESIDENT’SPRESIDENT’S CCIRCLEIRCLE MEMBERSMEMBERS FORFOR THEIRTHEIR DEDICATIONDEDICATION TOTO TTHEHE SFVBASFVBA ANDAND THETHE COMMUNITY.COMMUNITY.
Alpert Barr & Grant APLC ■ SFVBA membership for every fi rm Brot & Gross LLP attorney and paralegal Brutzkus Gubner Rozansky Seror Weber LLP Goldfarb, Sturman & Averbach ■ Prominent listing in Valley Lawyer Greenberg & Bass LLP and fi rm logo on President’s Circle page of SFVBA website Kantor & Kantor LLP Kraft, Miles & Miller LLP ■ Recognition and 5% discount Lewitt Hackman Shapiro Marshall on tables at Bar-wide events, & Harlan ALC including Judges’ Night Mirman, Bubman & Nahmias Neighborhood Legal Services of ■ Invitations to President’s Circle exclusive events with bench Los Angeles County offi cers, community leaders and Nemecek & Cole large fi rms Oldman Cooley Sallus Birnberg & Coleman Parker Milliken Clark O’Hara & Samuelian Pearlman, Borska & Wax Pearson Simon & Warshaw LLP Stone | Dean
CContactontact SFVBASFVBA ExecutiveExecutive DirectorDirector LizLiz PostPost atat (818)(818) 227-0494227-0494 oror [email protected] toto signsign upup youryour fi rmrm today!today! 43 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org CLASSIFIEDS
ATTORNEY-TO-ATTORNEY Sublease. Window office (17’x10’) REFERRALS plus secretarial bay, full-service SFVBA STATE BAR CERTIFIED suite, receptionist, voicemail, WORKERS COMP SPECIALIST copier, conference room. Call (818) Over 30 years experience-quality 999-9397. MCLE practice. 20% Referral fee paid to attorneys per State Bar rules. Sublease available in beautiful Goodchild & Duffy, PLC. (818) 380- office suite in Woodland Hills. Seminars 1600. Ventura Blvd. near DeSoto. Two offices: 13x13 and 10x10, each SPACE AVAILABLE with connecting cubicle. Sublease Audio includes reception, conference NORTHRIDGE rooms, storage, kitchen and Standalone 500 sq. ft. office. amenities. Quiet, relaxed COULDN’T Lobby, receptionist/secretarial area, atmosphere, well-appointed private attorney office. Close to space. Available immediately. ATTEND AN Chatsworth Courthouse. Call Steve Contact Erin at (818) 380-1700. IMPORTANT at (818) 368–9642 for more details. Perfect for a thinker! SFVBA SHERMAN OAKS Nice, unfurnished, window office SEMINAR? in small law firm. Located in Corner office. 14x19. Floor to Woodland Hills/Warner Center. ceiling windows. Secretarial bay Free parking for you and your Most SFVBA adjacent. Free parking. Executive clients. Call (818) 990-3990 for seminars since 2013 suite with receptionist, conference details. rooms, kitchen and amenities. available on Contact Eric (818)784-8700. audio CD or MP3. SUPPORT SERVICES Single office space available in PROFESSIONAL MONITORED Stay current and the most prestigious location in VISITATIONS AND San Fernando Valley—Comerica PARENTING COACHING earn MCLE credit. building in the Sherman Oaks Family Visitation Services • Galleria on Ventura and Sepulveda. 20 years experience “offering 12 month lease, thereafter month- a family friendly approach to” to-month. Single 3 window high conflict custody situations office located on the tenth floor • Member of SVN • Hourly or (amazing views). This is a mini extended visitations, will travel • suite with currently two CPAs; it’s [email protected] • (818) a very relaxed atmosphere and 968-8586/(800) 526-5179. we are looking for a subtenant to take over the last remaining GRAPHIC ARTIST Who is Versatape? office. $1300/month, first month Creating affordable, high-quality Versatape has been and deposit due upon entry. Call designs that will promote your recording and marketing (818)995-1040. business with simplicity and style. audio copies of bar association Call Marina at (818) 606-0204. educational seminars to California attorneys since 1983. WOODLAND HILLS Warner Center Towers. 1-2 New Office(s), 24x15, www.versatape.com 15x15, Secretarial, Conference Room, Kitchen, Copier. Available (800) 468-2737 Immediately. (818) 719-8000.
44 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org Helping diverse populations in San Fernando Valley and beyond gain access to justice Resolving disputes & educating the public For those engaged in litigation or trying to avoid it Highly qualifi ed panel of professionals offering mediations at exceptionally affordable rates Mediators with expertise in wide variety of disputes practice highest ethical standards
Learn the benefi ts of using mediation through educational and training programs (818) 856-0232 www.valleybarmediationcenter.com 5567 Reseda Boulevard | Suite 200 | Tarzana, CA 91356
Need a Meeting Space for Mediations or Depositions?
COFFEE AND COLD DRINKS SERVICE
AMPLE FREE PARKING
COPY MACHINE ACCESS
WI-FI ACCESS 600 square-foot conference room easily accommodates 20 people. PROFESSIONAL STAFF SUPPORT Reserve meeting space for only $150 per day! Spacious Breakout Room
5567 Reseda Blvd., Suite 200 | Tarzana, CA | 91356 Tel (818) 227-0490 | Fax (818) 227-0499 | www.sfvba.org www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 45 46 Valley Lawyer ■ DECEMBER 2017 www.sfvba.org Grand Opening COURT REPORTERS, INC. Santa Ana Visit all 8 of our locations Van Nuys Downtown LAVentura Ontario New!!! Santa Barbara West LA San Bernardino Santa Ana Video www.personalcourtreporters.com Conferencing
Mediation Rooms
Court Reporting
Trial War Rooms
8 Great Locations
Jury Trial Focus Groups
The road to success starts 800-43-DEPOS with us.
www.sfvba.org DECEMBER 2017 ■ Valley Lawyer 47