November 2016 Plaintiff Magazine

THE MAGAZINE FOR NORTHERN CALIFORNIA PLAINTIFFS’ ATTORNEYS Prosecuting Government Claims Dangerous roadways: Driving around design immunity — Sara Peters The Magazine for The intangibles of a highway-design case Northern California Plaintiffs’ Attorneys — e. robert “bob” wallach Unintended death sentences: November 2016 issue Prosecuting prisoner-suicide cases — David L. Winnett Reproduction in whole or in p ar t with out ex press Dangerous road surfaces and notice against written permission is prohibited. governmental entities — Miles B. Cooper Copyright 2016 by Neubauer & Associates, Inc. California’s whistleblower and retaliation laws with a special nod to Wells Fargo — Jennifer Schwartz and Menaka Fernando Suing the government Employment and arbitration: The “opt-out” trap — William C. Jhaveri-Weeks and Byron R. Goldstein a Quixotic journey? Put more teeth in your dog-bite case It doesn’t have to be. — Ron Berman Elder abuse: The undue influence presumption — Rebecca Diel and Erin Guy Castillo Profiles Profile: John Burris Civil-rights activist lawyer has been holding law enforcement accountable for more than four decades A C , Y R T S U D N I F O Y T I C d e t s e u q e R e c i v r e S e g n a h C 3 8 0 4 T I M R E P D I A P E G A T S O P S U 3 0 7 2 - 3 2 1 4 9 A C , o c s i c n a r F n a S L I A M D R A D N A T S t e e r t S d r a b m o L 9 2 2 2 D E T R O S E R P NOVEMBER 20 16 Your NEVADA REFERRAL & PERSONAL INJURY PARTNER CO-COUNSEL NEVADA’S LARGEST RELATIONSHIPS & HIGHEST RATED INJURY LAW FIRM “Rick is one of the best lawyers in the country. I call him every time I have any issue in Nevada and would not hesitate to refer him any type of case of any size.” ~ C. Michael Alder, Esq., Alder Law, Los Angeles, California CAALA Past President and Former Trial Lawyer of the Year “I recently co-counseled a serious Las Vegas injury case [MXL6MGO,EVVMWERHLMWPE[½VQ6MGO´WEHZSGEG]ERHWOMPPW are extraordinary, and were instrumental in resolving and QE\MQM^MRKSYVGPMIRX´WWM^EFPIVIGSZIV]² ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyers San Francisco, California © 2 0 1 6 R H L F 4 Plaintiff | November 2016 | plaintiffmagazine.com plaintiffmagazine.com | November 2016 | Plaintiff 5 Features Trial Practice and Procedure California’s whistleblower The intangibles of a highway-design case 14 and retaliation laws 44 One of California’s most senior and celebrated trial Learn to use the arsenal of California law lawyers explains in plain language the barriers to to litigate these employment claims; plus winning a highway design case – what really matters a look at the claim filed against Wells Fargo. and why it’s a small community of lawyers and JENNIFER SCHWARTZ AND MENAKA FERNANDO experts who handle these cases. E. ROBERT “BOB ” WALLACH The “opt-out” trap The dangerous roadway case: 24 New battlefront emerges in employers’ effort 46 to avoid class liability through the use Driving around design immunity of arbitration clauses. A look at the law, plus an extensive outline WILLIAM C. J HAVERI -W EEKS of questions to be addressed in discovery. AND BYRON R. G OLDSTEIN SARA PETERS Dog bites Departments 33 In this guide to discovery and the use of experts, a dog expert tells you how to put more teeth Trial Practice and Procedure in your dog-bite case. 7 Unintended death sentences RON BERMAN Prosecuting prisoner-suicide cases against the state. DAVID L. W INNETT Saving the American Dream 38 The powerful undue influence presumption Appellate Reports in litigating financial elder abuse cases. 49 Markow v. Rosner REBECCA DIEL AND ERIN GUY CASTILLO Appellate court isn’t buying hospital’s vicarious liability based upon ostensible agency of physician Profile: John Burris associated with the hospital. JEFFREY EHRLICH 41 Civil rights activist lawyer has been holding law enforcement accountable for more than four decades. Back Story STEPHEN ELLISON 52 Pave the planet Dangerous road surfaces and notice against ON THE COVER: governmental entities. Don Quixote and Sancho Panza, Illustration by nettle9, www.istockphoto.com MILES B. C OOPER Unintended death sentences Vol. 10 No. 11 NOVEMBER 2016 ADVERTISING SALES Prosecuting prisoner suicide cases against the state Plaintiff is the magazine for plaintiffs’ attorneys throughout Northern No. California: 415.431.1117 Services , Vol. 59, No. 6, June 2008, pp. themselves self-medicating and engaging California. Plaintiff is an independent magazine, not affiliated with any So. California: 760.721.2500 BY DAVID L. W INNETT legal professional association. We support those who protect the 676-82.) The study identified numerous in criminality to finance their habits. E-mail: [email protected] Rate card online at www.Plaintiffmagazine.com The Veen Firm, PC individual’s right of access to the civil justice system. Copyright © 2016 examples of ways in which both custodial This ultimately leads to incarceration, by Neubauer & Associates, Inc. All rights reserved. Reproduction in Plaintiff is published monthly by Neubauer & Associates, Inc. Mail subscriptions are free to plaintiffs’ attorneys in whole or in part without written permission is prohibited. Northern California; $50 annually for others. Send requests to [email protected]. The frequency of suicides in our jails staff and clinical staff often failed to ade - where they are ill-equipped to deal with quately assess and refer suicidal inmates isolation and loss of liberty. Correctional PUBLISHER EDITOR SUBMITTING ARTICLES FOR PUBLICATION and prisons is reprehensible. Even worse Richard J. Neubauer Maryanne B. Cooper, Esq. Plaintiff welcomes your submissions. Articles on all appropriate subjects are is that most of these suicides are preventa - for more intensive monitoring and, even facilities that do not have adequate sui - CONTRIBUTING EDITORS considered throughout the year. Query us, or send your completed article as a ble. A recent study of all 154 suicides that when such inmates were identified, failed cide prevention policies in place and/or WordPerfect, Word or RTF file attachment to: [email protected] Donna Bader, Esq. Jeffrey Ehrlich, Esq. William L. Veen, Esq. occurred in the California Department of to provide them with the care they need - fail to train their employees to follow 1 ed. ( Ibid .) their policies then compound the prob - SALES MANAGER ART DIRECTOR 2229 Lombard Street, San Francisco, CA Corrections and Rehabilitation between 2 Christopher S. Neubauer David Knopf Mail to: P.O. Box 470368, San Francisco, CA 94147 1999 and 2004 determined that 60% of Tragically, many of these same issues lem, and people who never should have 415.431.1117 866.838.2353 Fax those suicides were foreseeable, preventa - persist today, as our society continues to been in jail in the first place fall through COPY EDITOR SUBSCRIPTIONS Eileen Goss Jean Booth POSTMASTER: Change Service Requested ble, or both. (Patterson and Hughes, underfund mental health treatment facil - the cracks in the system and end their “Review of Completed Suicides in the ities and incarcerate the mentally ill. Far own suffering. VICE PRESIDENT - ADMINISTRATION Send address changes to Deborah L. Neubauer Neubauer & Associates, Inc., P.O. Box 2239, Oceanside, CA 92051-2239 California Department of Corrections and too often, people desperately in need of When this happens – when a spouse, Rehabilitation, 1999 to 2004,” Psychiatric mental health treatment instead find a parent, or a child loses a loved one to 6 Plaintiff | November 2016 | plaintiffmagazine.com plaintiffmagazine.com | November 2016 | Plaintiff 7 Unintended Death Sentences , continued from Previous Page an in-custody suicide – the law provides not enough that there was a danger of higher up the chain of command were an opportunity to seek recovery for the which a prison official objectively should also entitled to summary judgment, loss of the decedent’s Constitutional have been aware. ‘[T]he official must because there was no evidence that any rights. This article provides an overview both be aware of facts from which the of them were alerted to the likelihood of the Constitutional and statutory bases inference could be drawn that a substan - that the decedent was at imminent risk for such claims and some of the defenses tial risk of serious harm exists, and he of suicide. likely to be encountered when prosecut - must also draw the inference.’” ( Estate of Summary judgment was denied, ing them. Novack ex rel. Turbin v. County of Wood (7th however, in Cavalieri v. Shepard (7th Cir. Authority for in-custody suicide Cir. 2000) 226 F.3d 525, 529), quoting 2003) 321 F.3d 616. In that case, a claims Farmer, supra , at 837. There can be no lia - detainee was arrested after kidnapping bility if the official was not alerted to the his former girlfriend. While he was in Pursuant to 42 U.S.C. § 1983, the likelihood that the inmate was a genuine custody, both his mother and his girl - estate of a deceased inmate can bring suicide risk. ( Boncher ex rel. Boncher v. friend informed the arresting police offi - 3 federal claims, on behalf of the dece - Brown County (7th Cir. 2001) 272 F.3d cer that the detainee was suicidal and dent, for violations of the decedent’s 484, 488.) should be on suicide watch. The officer Constitutional rights. A municipal entity Deliberate indifference assured the mother that he would pass may be liable for an in-custody suicide if along that information to the jail, but he it is found that the entity’s policies, or The deliberate indifference standard is decided not to do so after interviewing lack thereof, caused a violation of the very high.

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