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

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

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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

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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. In Matos, supra , jail officials the detainee himself and determining he inmate’s Constitutional rights. ( City of were granted summary judgment in a was not a suicide risk. The detainee was Canton v. Harris (1989) 489 U.S. 378.) case where an inmate with a psychiatric not put on suicide watch and attempted and drug abuse history and who had pre - unsuccessfully to hang himself with a Right to medical care viously attempted suicide hung himself phone cord. The court denied the offi - The 8th Amendment’s 4 ban on cruel in his cell. Although there was a medical cer’s motion for summary judgment, and unusual punishment requires prison form indicating that the decedent had because it found that a jury could con - officials to take reasonable measures to previously attempted suicide, there was clude that he had been deliberately indif - guarantee the safety of inmates, includ - no evidence that it had been included in ferent in failing to pass along the moth - ing providing them with reasonably ade - the decedent’s medical records or that er’s and girlfriend’s concerns to the jail. quate medical 5 care. ( Farmer v. Brennan any of the officials who examined the The deliberate indifference standard (1994) 511 U.S. 825.) To prevail on an decedent had any actual knowledge that is admittedly a high hurdle. It is not, 8th Amendment claim, a plaintiff must he posed a high risk of suicide. however, insurmountable. Where a plain - establish both a subjective and an objec - Similarly, in Collins, supra , prison tiff can show that a defendant reasonably tive component: (1) the harm to the officials obtained summary judgment in a should have known of a substantial risk inmate must have been objectively, suffi - case where the decedent told a correc - of suicide and intentionally disregarded ciently serious and a substantial risk to tional officer that he was feeling suicidal that risk, liability may be found. his health or safety and (2) the defendant and wanted to see a prison crisis officer. Monell claims must have been deliberately indifferent The officer relayed the message to his to that risk. ( Mendiola-Martinez v. Arpaio superiors, but someone higher up the An aggrieved family member may (9th Cir. 2016 ) _ F.3d _ 2016 WL 4729476. ) chain of command neglected to include also sue a municipality and/or other local The first component is always met in the reference to the inmate’s suicidal governmental units for an in-custody sui - inmate suicide cases. ( Collins v. Seeman ideation. Prison officials nevertheless cide when the action that is declared to (7th Cir. 2006) 462 F.3d 757, 760 .) requested a counselor, and, in the mean - be unconstitutional implements a policy Consequently, in an inmate suicide time, the decedent informed the officer or rule officially adopted or promulgated case, the analysis of the second prong is that he was alright and could wait for the by the body in question. ( Monell v. New the focus. It, too, consists of a two part counselor. The officer checked on the York City Dept. of Social Services (1978) 436 test: the plaintiff must prove that the inmate two more times before finding U.S. 658.) To prevail on a Monell claim, a defendant: (1) subjectively knew that the him hanging in his cell. plaintiff must show: (1) that he possessed inmate was at a substantial risk of com - The court held that the officer was a Constitutional right of which he was mitting suicide and (2) intentionally dis - entitled to summary judgment, because deprived; (2) that the municipality had a regarded that risk. ( Ibid .) The standard he immediately passed along the request policy; (3) that the policy exhibited delib - requires “more than mere or gross negli - to see the counselor, checked on the erate indifference to the Constitutional gence, but less than purposeful infliction decedent more than once, and was told right; and (4) that the policy is the of harm.” ( Matos ex rel. Matos v. O’Sullivan by the decedent that he would be fine moving force behind the Constitutional (7th Cir. 2003) 335 F.3d 553, 557.) “It is until the counselor arrived. The officials See Unintended Death Sentences , Page 10

8 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com Unintended Death Sentences , continued from Page 8 Employment Law Referrals? Call Stephen Danz & Associates violation. ( Plumeau v. School Dist #40 (9th and that the challenged action itself was alleged.” ( Ibid. ) A plaintiff must show that Cir. 1997) 130 F.3d 432, 438.) However, a an act of official governmental policy and the municipal action was taken with the city or county may not be held vicariously was the result of a deliberate choice requisite degree of culpability and must liable for the unconstitutional acts of its made from among various alternatives; demonstrate a causal link between the employees under the theory of respondeat or (3) by proving that an official with municipal action and the deprivation of superior. (Board of Comm’rs of Bryan County final policymaking authority either dele - federal rights. ( Ibid. ) “Where a plaintiff Oklahoma v. Brown (1997) 520 U.S. 397, gated policymaking authority to a subor - claims that the municipality has not 403.) dinate or ratified a subordinate’s uncon - directly inflicted an injury, but neverthe - Liability based on a municipal policy stitutional decision or action and the less has caused an employee to do so, may be satisfied in one of three ways: (1) basis for it. ( Fuller v. City of Oakland (9th rigorous standards of culpability and cau - by showing that a city or county employ - Cir. 1995) 47 F.3d 1522, 1534.) sation must be applied to ensure that the ee committed the alleged Constitutional It is not enough for a § 1983 plain - municipality is not held liable solely for violation under a formal governmental tiff to merely identify conduct attributa - the actions of its employees.” ( Id. at 405.) policy or longstanding practice or custom ble to the municipality. ( Board of Comm’rs “Jail managers who decided to take that is the customary operating proce - v. Brown , supra , 520 U.S. at 404.) Rather no precautions against the possibility of dure of the local government entity; (2) the plaintiff must again establish deliber - inmate suicide – have no policy, for by establishing that the individual who ate indifference; that is “through its example, no suicide-watch option – would committed the Constitutional tort was an deliberate conduct, the municipality was be guilty of deliberate indifference ....” official with final policymaking authority, the ‘moving force’ behind the injury See Unintended Death Sentences , Page 12

Steve and his Nor-Cal Team are our go-to Emp“loyment Law Firm. They are great with the clients, easy to work with and give us regular updates on each one of our cases. I not only refer cases to SD&A, but recommend him and his team constantly to people! ERIC FARBER , Managing Attorney ” Farber & Company Attorneys, P.C./Pacific Workers’ Compensation Law Center

877-789-9707 www.employmentattorneyca.com/referral Stephen Danz & Associates • One Embarcadero • Suite 500 • San Francisco, CA 94111

(Boncher v. Brown County (8th Cir. 2001) known. ( Harlow v. Fitzgerald (1982) 457 haunting. Though these cases can pres - 274 F.3d 484, 486.) However, where there U.S. 800, 818-819.) ent enormous challenges, they deserve were suicide preventions in place, such as A law is clearly established when it is to be brought. We must do our part to suicide-watch or safety cells and other clear to every reasonable officer that his improve mental health treatment in our policies, the question becomes whether conduct was unlawful given the particular jails and prisons. those policies were so inadequate that situation confronted. A government offi - such an inadequacy should have been cial’s conduct violates clearly established David L. Winnett obvious. ( Id. at 486-487.) “A defendant is law when, at the time of the conduct, represents catastrophically liable for denying needed medical care “[t]he contours of [a] right [are] suffi - injured plaintiffs as a mem - only if he ‘knows of and disregards an ciently clear” that every “reasonable offi - ber of the Peters Trial Team excessive risk to inmate health and safe - cial would have understood that what he at The Veen Firm, P.C. ty.’” (Yet, simply having such policies in is doing violates that right,” beyond He is a skilled trial attorney place does little good if those policies are debate. ( Ashcroft v. al-Kidd (2011) 563 representing catastrophically not followed. “For all intents and purpos - U.S. _ 131 S. Ct. 2074, 2083.) The term Winnett injured plaintiffs. Since es, ignoring a policy is the same as hav - “clearly established” requires that the starting his career as a pros - ing no policy in place in the first place.” unlawfulness be apparent in light of ecutor over 20 years ago, he has tried dozens (Woodward v. Corr. Med. Servs. Of Ill., Inc. existing law. ( Anderson v. Creighton (1987) of civil and criminal cases to verdict. Earlier (7th Cir. 2004) 368 F.3d 917, 929.) 483 U.S. 635, 640.) this year, he was a finalist for SFTLA’s Trial Again, the deliberate indifference Even if an officer is mistaken as to Lawyer of the Year. He is also a graduate of standard is considerable, but there are the legal constraints on his conduct, CAOC’s Leadership Academy and a Fellow circumstances under which survivors may qualified immunity must still be given if of the New Leaders Council. successfully establish liability against the mistake is reasonable, as the doctrine Endnotes municipal entities for failing to have recognizes that “reasonable mistakes can 1 The rate of suicides in jails is considerably higher than it is appropriate mechanisms in place to be made as to the legal constraints on in prisons. Mumola, “Suicide and Homicide in State Prisons protect suicidal inmates. particular police conduct.” ( Saucier v. and Local Jails: Bureau of Justice Statistics Special Report,” Katz (2001) 533 U.S., 205-206.) “If an Washington, D.C., U.S. Department of Justice, Aug. 2005. Qualified Immunity 2 official could reasonably have believed Although suicides are not necessarily predictable, the authors of this study – two psychiatry professors who con - Yet another impediment to establish - her actions were legal in light of clearly ducted the review in the wake of Coleman v. Schwarzenegger , ing liability against government actors is established law and the information she a class-action suit challenging the adequacy of mental health the concept of qualified immunity, 6 which possessed at the time, she is protected by services available to prisoners – used the terms "foreseeable" and "preventable" to indicate cases in which there was an ele - shields an officer from suit when he or qualified immunity.” ( Franklin v. Fox (9th vated risk of suicide or events occurred that should have trig - she makes a decision that, even if Cir. 2002) 312 F.3d 423, 437.) Qualified gered clinical or custodial reactions that would have reduced Constitutionally deficient, reasonably immunity is an extremely deferential the likelihood that the suicide would be completed. Patterson misapprehends the law governing the standard that “gives ample room for mis - and Hughes. 3 Aggrieved family members can also bring suit in California circumstances he or she confronted. taken judgments by protecting all but the state court for – among others – wrongful death, survival, (Brosseau v. Haugen (2004) 543 U.S. 194, plainly incompetent or those who know - loss of consortium, and failure to take reasonable action 198.) Qualified immunity is more than a ingly violate the law.” Hunter v. Bryant to summon medical care for an inmate the official knows or has reason to know requires immediate medical care. mere defense to liability; it is “an entitle - (1991) 502 U.S. 224, 229. In essence, (Cal.Gov.Code, § 845.6). Under certain circumstances, such ment not to stand trial or face other bur - qualified immunity gives government claims can be brought in federal court, but state law claims dens of litigation” and “is effectively lost officials breathing room to make are beyond the scope of this article. 4 if a case is erroneously permitted to go to The Fourteenth Amendment's Due Process Clause, rather reasonable but mistaken judgments. than the Eighth Amendment's protection against cruel and trial.” ( Mitchell v. Forsyth (1985) 472 U.S. (Messerschmidt v. Millender (2012) 132 S. unusual punishment, applies to pretrial detainees, and the 511, 526.) Ct. 1235, 1244-1245.) same standards are applied. Bell v. Wolfish (1979) 441 U.S. Qualified immunity encourages offi - Clearly, this is a very deferential 520, 537 n. 16; Cabrales v. County of Los Angeles (9th Cir. 1988) 864 F.2d 1454, 1461. cials to exercise their discretion without standard. The current state of the law 5 The requirements for Constitutionally adequate mental health the fear of liability when the state of the essentially requires plaintiffs to show that care are essentially the same as those for physical health care law is unclear or their actions are reason - the government actors had no rational needs. Doty v. County of Lassen (9th Cir. 1994) 37 F.3d 540, 546. able under the totality of the circum - justifications for their actions. 6 Numerous state law immunities may also insulate state stances. ( Carlo v. City of Chino (9th Cir. Conclusion actors from liability under certain circumstances. These 1997) 105 F.3d 493, 500). Qualified include: Cal.Gov.Code §§ 815, 820.4, 844.6, and 856. immunity must be granted if the discre - The loss of a loved one to an in- These are also beyond the scope of this article. tionary function of a public official did custody suicide can be devastating. The not violate clearly established law of idea that a loved one died alone in a cold which a reasonable person would have cell with no one to comfort him can be

12 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com California boasts strong protection for NOVEMBER 2016 whistleblowers, robust retaliation laws Learn how to use the arsenal of tools to litigate claims such as the one filed against Wells Fargo MEDICAL DIRECTORY BY JENNIFER SCHWARTZ section 1102.5, which protects employees now expressly prohibits anticipatory who report or refuse to participate in retaliation where the employer believes AND ENAKA ERNANDO M F unlawful conduct. Specifically, the statute that the employee may report unlawful California boasts some of the most forbids retaliation if the employee dis - activity regardless of whether the employ - protective whistleblower and retaliation closed, “or because the employer believes ee has actually done so. (Lab. Code, § laws in the nation. In the last few years, that the employee disclosed or may dis - 1102.5, subd. (b).) The legislature also the state legislature has acted to bolster close information, to a government or added safeguards for employees who these protections in line with California’s law enforcement agency, to a person with only internally report illegal conduct to “broad public policy interest in encourag - authority over the employee or another either a supervisory or other employee ing workplace whistleblowers to report employee who has the authority to inves - who has authority to investigate. ( Ibid .) unlawful acts without fearing retaliation.” tigate, discover, or correct the violation In addition, employees who complain of (Diego v. Pilgrim United Church of Christ or noncompliance, or for providing violations of the law as part of their job CALIFORNIA DIAGNOSTIC & TREATMENT CENTERS (2014) 231 Cal.App.4th 913, 922.) information to, or testifying before, any duties (e.g., human resources employees) A class-action lawsuit filed against public body . . . if the employee has rea - are now explicitly protected. ( Ibid .) Wells Fargo last month by employees of sonable cause to believe that the informa - Significantly, the statute now explic - the embattled banking giant, ( Polonsky tion discloses a violation of state or fed - itly protects reporting violations of local v. Wells Fargo Bank & Company, et. al. eral statute, or a violation of or noncom - laws as well. ( Ibid .) Thus practitioners (L.A.S.C. Case No. BC634475 Sep 22, pliance with a local, state, or federal should take care to consider all the local 2016), illustrates the importance of these rule or regulation . . . .” (Lab. Code, laws and regulations that may apply to a protections. 1 As has been widely report - § 1102.5, subd. (b).) In addition, the client’s circumstances. Cities like San 3 4 ed, Wells Fargo has admitted to creating statute forbids an employer from retaliat - Francisco and Oakland, for example, We’ve got you covered! as many as two million unauthorized ing against an employee “for refusing to have wage protections and robust paid accounts for bank customers in a practice participate in an activity that would result sick and family leave laws on the books called “cross-selling.” There are allega - in a violation of state or federal statute, that may bolster employees’ whistleblow - We can help find the Most Suitable tions that this was done to increase the or a violation of or noncompliance with a er claims and should not be overlooked. price of Wells Fargo stock. The directive local, state, or federal rule or regulation.” Notably, section 1102.5 applies even Medical Specialist at the Most Convenient to do so was allegedly handed down from (Lab. Code, § 1102.5, subd. (c).) where the employer is mistaken in believ - former Wells Fargo CEO John Stumpf Like the Wells Fargo employees, ing that the employee reported or may Location for your Client. (he denies this). 2 The lawsuit alleges that plaintiffs can allege violations of section report unlawful conduct. ( Diego, supra, the bank imposed aggressive quotas, 1102.5 where an employer subjects them 231 Cal.App.4th at p. 923.) And protec - • Accepting Liens at Hundreds of Locations in California forcing its employees to engage in unlaw - to retaliation for opposing or refusing to tion extends to an employee’s family • Representing a wide variety of Medical Specialties ful practices – including the creation of engage in unlawful conduct, e.g., in that members. (Lab. Code, § 1102.5, subd. fraudulent accounts – to meet unrealistic case, the creation of unauthorized bank (h).) On the other hand, post -termination • Experts in both Work Comp and Personal Injury sales goals. To “motivate” other employ - accounts. The Wells Fargo lawsuit makes retaliation is not actionable under section • Reasonable and Customary Fees ees to engage in this illegal conduct, the apparent that the company, allegedly 1102.5, so that defamatory statements • Prompt Reporting and Billing lawsuit alleges that the bank either sanctioned at the highest levels, not only made to a prospective employer after demoted or fired a class of employees stole from its customers but also imposed the employer-employee relationship that refused to open fraudulent accounts widespread harm to its employees by ends would not provide a basis for legal to meet impossible sales quotas. A puta - forcing them to engage in illegal activity action under the statute. (See Hansen v. tive class of these employees alleges vio - to avoid losing their jobs. In an economy California Dept. of Corrections and lations of several California whistleblower where full-time jobs with benefits are Rehabilitation (2008) 171 Cal.App.4th and retaliation protections. especially hard to come by, Wells Fargo’s 1537, 1546.) conduct is even more egregious. Tameny claims Labor Code section 1102.5 It is important to note that recent provides broad protection amendments to Labor Code section Tameny claims provide wide-ranging The most noteworthy of California’s 1102.5 expand its reach to protect a protection when tethered to public policy. whistleblower statutes is Labor Code broader group of employees. The statute See Whistleblower & Retaliation , Page 16

14 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com Whistleblower & Retaliation , continued from Page 14

Employees who are retaliated against for for Wrongful Termination in Violation of (1980) 27 Cal.3d 167, 176-177. Unlawful reporting unlawful conduct may also Public Policy, also known as a Tameny conduct underlying a Tameny cause of bring a common law tort cause of action claim, under Tameny v. Atlantic Richfield Co . action must be tethered to fundamental public policies that are embodied in con - stitutional or statutory provisions. ( Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095.) The California Supreme Court has articulated four requirements that a policy must satisfy to support a Tameny claim: (1) the policy must be supported by constitutional or statutory provisions; (2) the policy must inure to the benefit of the public; (3) the policy must have been existed at the time of discharge; and (4) the policy must be fundamental and substantial. ( Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890.) A Tameny claim may be maintained even where an employee is not ultimately terminated. Thus, an employee who has been subjected to adverse employment action such as a demotion or suspension without pay in retaliation for his or her whistleblowing activities may have a claim. ( Garcia v. Rockwell Int’l Corp. (1986) 187 Cal.App.3d 1556, 1562.) As with most other California retaliation provi - sions, the employee need not show the employer conduct actually violated the law; rather, “reasonably based suspicions of illegal activity” is sufficient. ( Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 87.) What is considered “fundamental public policy” encompasses a broad vari - ety of policies. Examples include pro - hibiting employment discrimination (the Fair Employment and Housing Act, Gov. Code, § 12900 et seq. and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.); violation of family and medical leave laws (e.g., the California Family Rights Act, Gov. Code, § 12945.2); retaliation for reporting unsafe working conditions (Lab. Code, § 6310); refusing to sign non-compete agreement (Bus. & Prof. Code, § 16600); and refusing to make prompt payment of wages (Lab. Code, § 216, subd. (a).) This is by no means an exhaustive list. Wrongful discharge claims may also arise from breach of California’s constitu - tional provisions such as the prohibition against disqualifying a person “from See Whistleblower & Retaliation , Page 18

16 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com THE CIFARELLI LAW FIRM, LLP Whistleblower & Retaliation , continued from Page 16 Why you should refer your child sexual abuse entering or pursuing a business, profes - ethnic origin.” (Cal. Const., art. I, § 8; particular, in employment situations sion, vocation, or employment because see also Rojo v. Kliger (1990) 52 Cal.3d where the protections of FEHA do not or adult sexual abuse case to us: of sex, race, creed, color, or national or 65, 89.) This provision may be useful, in apply. Even administrative regulations that implement a statute that implicate fundamental public policies can support We have un-matched experience handling child sexual abuse cases for nearly twenty years. a Tameny claim. (See Green , supra , 19 Cal.4th at p. 82.) We have re-defined the value of Childhood Sexual Abuse cases and Sexual Abuse cases involving adults. The Wells Fargo employees allege that the bank’s conduct violates numer - VICTORIES FOR CHILDREN SINCE 2012 ous fundamental public policies: pro - hibiting the use of another’s personal HIGH SEVEN-FIGURES PAID Teacher touching two students in the classroom data for unlawful purposes (Pen. Code, § 530.5, subd. (a)); the unauthorized use of MID SEVEN-FIGURES PAID Teacher sexually assaulting student athlete data to commit fraud (Pen. Code, § 502, SEVEN-FIGURES PAID Teacher putting student on lap in classroom subd. (c)(1)); the failure to disclose a security breach of computerized data SEVEN-FIGURES PAID 5-year-old girl molested by 5-year-old boy (Civ. Code, § 1798.82 subd. (a)); and the obligations of financial institutions to VICTORIES FOR ADULTS SINCE 2012 protect the personal information of its customers from unauthorized access or misuse under the Gramm-Leach-Bliley HIGH SEVEN-FIGURES PAID Patient improperly touched by physician during exam Act, 15 U.S.C. § 6801 et seq., and the SEVEN-FIGURES PAID Patient fondled by physician before surgery regulations promulgated thereunder. While generally it is important to specify each constitutional, statutory or GROUNDBREAKING PRIVACY RIGHTS VICTORY FOR CHILD SEXUAL ABUSE VICTIMS regulatory basis that articulates the state’s public policy when pleading a Tameny M.G. v. Time Warner, Inc., (2001) 89 Cal.App.4th 623 claim, a recent court has found that even where the basis is not specified, a wrongful Generous referral fees paid pursuant to state bar rules. discharge claim may lie, so long as the plaintiff alleges allegations sufficient to invoke a fundamental public policy. (See Prue v. Brady Company/San Diego, Inc. THOMAS CIFARELLI (2015) 242 Cal.App.4th 1367, 1379-1380.) Best Lawyers in America, Lawyer of the Year, Note, however, that Tameny claims gener - Orange County, 2014 – 2015 and 2016 – 2017 ally do not lie against public entities. ( Ross v. San Francisco Bay Area Rapid Transit Dist. Best Lawyers in America, 2011 – 2016 (2007) 146 Cal.App.4th 1507, 1514.) Southern California Super Lawyers, 2004 – 2016 California provides expansive Southern California Top 50 Super Lawyers protections National Trial Lawyers, Top 100 Several other California statutes pro - Trial Lawyers in California vide expansive whistleblower and retalia - tion protection in other contexts. FEHA, Martindale-Hubbell, California’s anti-discrimination statute, AV Preeminent Rating since 2001 prohibits retaliation against “ any person ” Law Dragon, Top 500 for engaging in protected activity under Plaintiff Lawyers in America the statute, including job applicants, cur - rent or former employees and business AVVO 10.0 Superb rating partners. (Gov. Code, § 12940 subd. (h) (emphasis added); Fitzsimons v. California Emergency Physicians Med. Group (2012) THE CIFARELLI LAW FIRM, LLP 205 Cal.App.4th 1423, 1431.) See Whistleblower & Retaliation , Page 20 www.cifarelliinjurylaw.com 1.888.703.7833 • 949.502.8600 18 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com Whistleblower & Retaliation , continued from Page 18 The Pain

Protected activity includes participat - opposing unlawful conduct by making whether the complaints were well-found - Detectives ing in any manner in proceedings under formal or informal complaints to the ed). (Gov. Code, § 12940 subd. (h); the statute (including participating in an employer regarding discrimination, Passantino v. Johnson & Johnson Consumer investigation or testifying as a witness) or harassment or retaliation (regardless of Products, Inc. (9th Cir. 2000) 212 F.3d 493, 506-507). This protection extends to an employee even when he or she only “Serving the community since 1992” threatens to file a charge of employment www.totalcaremedical.com discrimination. ( Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 815.) FEHA was amended last year to explicitly provide that a request for rea - sonable accommodation on the basis of disability or religion is a protected activi - ty under FEHA’s retaliation provision, regardless of whether the request was granted and whether the employee affir - matively “opposes” discriminatory con - duct. (Gov. Code, § 12940, subds. (l)(4) & (m)(2).) Earlier this year, the Equal Employment Opportunity Commission (“EEOC”) issued revised interpretive guidance regarding retaliation under fed - eral anti-discrimination laws. Even where practitioners are only bringing state law claims, federal law and EEOC guidelines are critical tools that should not be over - looked. Indeed, it has long been held that federal anti-discrimination statutes provide the floor of protection that California’s law has always exceeded in the protections afforded to employees. (See, e.g., Gov. Code, § 12926.1, subd. (a).) Of critical importance is the fact that the EEOC guidance expands the defini - tion of protected activity to include com - plaints not only to a manager, but also, depending on the circumstances, state - ments to coworkers, an attorney, the police or customers. (See EEOC Enforcement Guidance on Retaliation and Related Issues (Aug. 2016), § II(A) (available at https://www.eeoc.gov/laws/ 8080 NEW FACILITIESFACILITIES guidance/retaliation-guidance.cfm#_ ftnref165).) The EEOC also expands the definition of “adverse action” to include 330000 FACILITIESFACILITIES ININ CALIFORNIACALIFORNIA any action that might deter a reasonable person from engaging in protected activi - Neurosurgery, Orthoped ic, Neurology , Pain Management, Maxillofacial, Ophthalmologist, ty. ( Id. at II(B).) This action may include action that is work-related (e.g., failure to Plastic Surgery, Psychology, Physical Therapy, Chiropractic, Diagnostics (MRI, X-ray, CT, EMG, NCV) promote, demotion or discharge), or one that has no tangible effect on employment , or See Whistleblower & Retaliation , Page 22 LIENS ACCEPTED 661 -226-87 00 20 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com WWW.TOT ALCAREM EDICAL.C OM

Whistleblower & Retaliation , continued from Page 20

even action that takes place outside of work , (Lab. Code, § 6310, subd. (b).) The Conclusion as long as it may dissuade a reasonable statute has been interpreted broadly to Whether on a class action or individ - person from opposing discriminatory protect employees who make complaints ual basis, California’s various retaliation conduct or engaging in other protected about workplace violence and threaten - statutes provide practitioners with an activity. ( Ibid. ) ing behavior. ( Franklin v. Monadnock arsenal of effective tools with which to These actions include, but are not Co. (2007) 151 Cal.App.4th 252, 255 litigate their whistleblower claims. Recent limited to, work-related threats or repri - [employers are required to take reason - developments have expanded these pro - mands; negative or lowered evaluations; able steps to address threats of violence tections and enhanced the ability for transfer to less desirable work locations; in the workplace]; C at pp. *1-*3 employees to recover. false reports to government authorities [teacher who complained about poten - or in the media; filing a civil action; tially violent students engaged in pro - Jennifer Schwartz is heightened job scrutiny, engaging in abu - tected activity].) a partner at Outten & Our professional team sive verbal or physical behavior likely to Wage Violations: Another expansive Golden LLP and leads the deter protected activity, even if it is not statute is Labor Code section 98.6, which practice in its San Francisco of trial lawyers “severe or pervasive” enough to create a prohibits an employer from retaliating office representing individ - hostile work environment; threatening against an employee for instituting a ual employees. Jennifer rep - has decades of experience deportation; terminating a union griev - bona fide claim relating to his or her resents employees, including ance process or taking (or threatening to rights under the jurisdiction of the Schwartz senior executives, in a wide representing clients in these take) materially adverse action against a Labor Commissioner, for making a writ - variety of employment mat - close family member. ( Ibid. ) A family ten or oral complaint that he or she is ters, ranging from wrongful termination, areas of practice: member might also have a retaliation owed unpaid wages, or for initiating a whistleblower, discrimination, sexual harass - claim even if he or she is not an employ - claim under the Private Attorney ment, and retaliation claims to the negotiation ee. ( Ibid. ) General’s Act under Labor Code section of employment, severance, restrictive covenant, INSURANCE BAD FAITH 2699. (Lab. Code, § 98.6, subd. (a).) and trade secret agreements. Other notable whistleblower Unsafe patient care and conditions: statutes MEDICAL MALPRACTICE Health & Safety Code section 1278.5 Menaka Fernando is Unsafe working conditions: Labor prohibits retaliation against any patient, an associate at Outten & CIVIL RIGHTS Code section 6310 provides a basis for employee, member of the medical staff, Golden LLP in San legal action where an employee is retali - or any health-care worker or a health- Francisco, where she repre - ated against for reporting unsafe work - care facility who reports suspected sents individual employees CATASTROPHIC PERSONAL INJURY ing conditions in the workplace, whether unsafe patient care and conditions to the in litigation and negotiation reported internally or to a law enforce - facility or government entities. (Health in all areas of employment ment agency like the Occupational & Saf. Code, § 1278.5, subds. (b)(1)(A) Fernando law including wrongful Safety and Health Administration. & (B).) termination, whistleblower, sexual harassment, discrimination and retaliation claims. Endnotes 1 The lawsuit filed in Los Angeles Superior Court can be found at https://www.documentcloud.org/documents/3113835- Wells-Fargo-Class-Action.html. 2 See, e.g., http://www.bloomberg.com/news/articles/2016- 10-12/wells-fargo-ceo-stumpf-steps-down-in-fallout-from- 888.20 CLAIM fake-accounts. 3 San Francisco’s minimum wage ordinance can be found at Accepting http://www.nbcbayarea.com/news/local/Minimum-Wage- 25246 Jumps-to-13-Per-Hour-in-San-Francisco-385257511.html. referrals and San Francisco’s paid sick leave ordinance can be found at 424.288.4368 (Fax) http://sfgov.org/olse/PAID-SICK-LEAVE-ORDINANCE-PSLO. co-counsel arrangements. 4 Information about Oakland’s minimum wage and paid sick leave law can be found at http://www2.oaklandnet.com/ www.actslaw.com government/o/CityAdministration/d/MinimumWage/index.htm.

Los Angeles Office Santa Ana Office San Francisco Office Phone: (310) 407-7888 Phone: (714) 382-6795 Phone: (888) 202-5246 Fax: (310) 407-7915 Fax: (714) 716-8445 One Sansome Street, Suite 3500 1901 Avenue of the Stars, Suite 935 6 Hutton Centre Drive, Suite 600 San Francisco, CA 94104 22 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com Los Angeles, CA 90067 Santa Ana, CA 92707 The “opt-out” trap New battlefront in employers’ effort to avoid class liability through arbitration clauses BY WILLIAM C. J HAVERI -W EEKS AND BYRON R. G OLDSTEIN

Employees recently won a significant victory when the Ninth Circuit Court of Appeals held that arbitration clauses for - bidding employees from joining together in a single proceeding are unlawful under the National Labor Relations Act. (See Morris v. Ernst & Young , __ F.3d __, 2016 WL 4433080 (9th Cir. Aug. 22, 2016).) Under Morris , as a matter of first impression in this Circuit, an employer’s mandatory arbitration agreement that forbids class proceedings in all forums is a violation of the NLRA’s guar - antee of the right of employees to engage in “concerted action.” After Morris , an employer may be able to compel an employ - ment class action to arbitration, but the employer will not be able to avoid a class proceeding altogether. In light of Morris , a defense-side weapon known as an “opt- out” provision is likely to appear much more frequently in rou - tine employment arbitration provisions. Such a provision – often buried at the end of a long, dense, mandatory contract – gives the employee an opportunity to take affirmative steps to “opt out” of the arbitration agreement within a certain period of time after accepting it. For example, the contract may state that by submitting a written request to opt out of arbitration within thir - ty days after accepting the agreement, the employee can avoid being bound by the arbitration terms. Although an opt-out provision may seem at first glance like a benefit for employees, the employer’s transparent purpose for including the clause is to insulate the arbitration agreement panel to hold that there was no NLRA violation. (755 F.3d 1072, from later attacks by the employee. Employers know that few, if 1076 (9th Cir. 2014).) The Johnmohammadi court concluded that any, employees will discover the opt-out clause, and that those because the employee had not taken the steps to opt out of the who do will be unlikely to decide to begin their employment arbitration agreement, she had voluntarily given up her right to relationship by informing the employer that they are taking engage in concerted action going forward. affirmative steps to preserve their right to sue the company in Like Morris , Johnmohammadi was a matter of first impres- court. Employers are including the clause because an employee’s sion in the Circuit, and although it is currently the law, failure to follow the opt-out steps will place the employee in a Johnmohammadi may be on uncertain footing. The Seventh worse position with respect to participating in a class or collec - Circuit recently singled it out for criticism, pointing out that it tive action than if there had been no opt-out clause at all. allows employees to prospectively waive their right to engage in concerted action under the NLRA, which is contrary to long - Defeating the right to “concerted action” standing precedents of the Seventh Circuit and the National Employees who fail to take affirmative steps to “opt out” of Labor Relations Board (“NLRB”). (See Lewis v. Epic Sys. Corp. an arbitration agreement may lose the NLRA-provided right to (7th Cir. 2016) 823 F.3d 1147, 1155.) Some lower courts in engage in concerted action, which, as Morris recognized, other circuits have expressly not followed Johnmohammadi .) includes the substantive right to engage a class or collective (See In re: Fresh & Easy, LLC , 2016 WL 5922292, at *12 (Bankr. action. The arbitration agreement in Morris had no opt-out pro - D. Del. Oct. 11, 2016)) (“[T]he fact that the Plaintiff was given vision, and on that basis, the court specifically distinguished an an opportunity to opt out of the Arbitration Agreement does earlier Ninth Circuit case, ( Johnmohammadi v. Bloomingdale’s, not alter the Court’s determination that the Class Waiver is Inc. ), where the presence of an opt-out provision had led the See “Opt-out” Trap , Page 26

24 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com “Opt-out” Trap , continued from Page 24

unenforceable.”); ( Curtis v. Contract Mgmt. NLRB, to whom federal courts owe defer - waivers, even when accompanied by an Servs. , 2016 WL 5477568, a t *6 (D. Me. ence when interpreting the NLRA, has opt-out clause, violate the NLRA right Sept. 29, 2016) (same).) In addition, the held, post- Johnmohammadi , that class to engage in concerted action. (See On Assignment Staffing Services, Inc. , 362 NLRB No. 189 (2015).) The NLRB has indicated that it will be filing an amicus brief in a pending Ninth Circuit case involving a class waiver accompanied by an opt-out provision. (See O’Connor v. Uber Techs. Inc. , Case No. 15-17420 (Oct. 14, 2016 appearance of NLRB as amicus curiae ).) But so long as it remains the law in this Circuit, Johnmohammadi provides a strong incentive for California employers to use opt-out provisions in an effort to avoid facing class liability. 1

Insulating unconscionable terms from court review Providing Injured Plaintiffs A second potential harm to employ - ees who fail to opt out is that they may Tax-Free Financial Security and be foreclosed from challenging provisions that would otherwise be struck down as unconscionable. The Ninth Circuit Peace of Mind, Now & for Their Futures recently held that the presence of an opt- out clause prevented a finding of proce - A premier law firm handling dural unconscionability. See Mohamed v. Uber , _ F.3d _, 2016 WL 4651409 (9th cerebal palsy and birth injury cases Specializing in Personal Injury, Medical Malpractice, Wrongful Cir. Sept. 7, 2016). 2 Because substantive - ly unconscionable provisions may not be Death, Employment, Mass Torts and Attorney Fee Structures used to invalidate a contract unless there is also some degree of procedural uncon - We make a difference in the lives • Comprehensive Structured Settlement Planning scionability, courts may allow the mere presence of an opt-out clause to insulate of children with disabilities. $VVLVWDQFHZLWK7UXVWV3XEOLF%HQHÀW3URWHFWLRQ substantively unconscionable provisions QSFs and Medicare Set-Asides from court review. As a result, provisions that have long been held substantively • No cost for our services unconscionable may now be imposed upon employees simply because they fail Proud Business to discover and take affirmative steps to Partner with MELISSA BALDWIN exercise an opt-out right. The Ninth Circuit appears to be tak - 1 700 Montgomery St. Ste 101 ing a more extreme position on this issue San Francisco, CA 94111 than California law would support. The California Supreme Court, in ( Gentry v. Phone: 415.244.5124 | 800.485.0336 Superior Court (2007), 42 Cal.4th 443) Email: [email protected] held that a contract was procedurally unconscionable even though it contained an opt-out provision, but recent Ninth LAW OFFICES OF MICHELS & LEW Circuit decisions have not taken Gentry MEDICAL MALPRACTICE ATTORNEYS Dedicated Personal Attention to You & Your Clients into account. If this trend continues, it will result in federal courts giving a See “Opt-out” Trap , Page 28 michels-lew.com 26 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com “Opt-out” Trap , continued from Page 26

seemingly unjustifiable level of protection agreements (i.e., waiving the right to Opt-outs and smartphone to substantively unconscionable contract bring such claims in arbitration and the “contracting” provisions merely because an opt-out right to bring them in court) are unlaw - The fact that many putative con - clause is buried in the contract, even ful, and both have also rejected employer tracts are now entered into by the tap when normal indicia of procedural arguments that the presence of an opt- of the screen on a smartphone increas - unconscionability are present. out provision cures the illegality. (See es certain hazards for employees by Sakkab v. Luxottica Retail N.A., Inc. (2015) making it easier for employers to “roll Using opt-out provisions to 803 F.3d 425 Securitas Sec. Servs. USA, avoid PAGA claims out” new contract terms that are unfa - Inc. v. Super. Ct. of San Diego Cnty (2015) vorable to the employee. Moreover, a One type of group claim that 234 Cal.App.4th 1109.) The courts have smartphone is less conducive to review - employers have failed to eliminate reasoned that blanket PAGA waivers are ing a dense, lengthy document. For through the use of opt-out provisions is impermissible because the Legislature example, in the smartphone-based representative claims under the Private enacted PAGA to empower employees to sharing economy, in which the main Attorneys General Act (“PAGA”), (Cal. enforce the Labor Code as representa - form of interaction between workers Lab. Code, § 2699 et seq.) Both the tives of the state, and permitting private and the company is via smartphone California courts and the Ninth Circuit parties to enter into pre-dispute waivers app, the company can simply update have recently held that blanket waivers of of that power would frustrate public its terms and require the worker to representative PAGA claims in arbitration policy. See “Opt-out” Trap , Page 30

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“click” to accept them before receiving The future of Morris and the opinions in Lewis and Morris , to join the (the “savings clause ensures that . . . NLRA, and the arbitration agreement in another assignment. likely growing use of opt-out Seventh and Ninth Circuits and hold that there is no irreconcilable conflict Iskanian left room for joint and consoli - It is, of course, a fiction that workers clauses [a class] waiver . . . is unenforceable between the NLRA and the FAA.”) This dated claims in arbitration, unlike many will review and digest the lengthy and The Circuits are split on the applica - under the NLRA,” but the court was con - accords with the view of the NLRB. The blanket class and collective action complex agreement, understand how it bility of the NLRA to class-action waivers strained by a prior Second Circuit panel’s decisions rejecting the NLRA argument waivers. ( Id. at 374.) Still, as a strategic differs from the prior agreement, and in arbitration agreements. The Morris decision. ( Patterson v. Raymors Furniture fail convincingly to harmonize the statu - issue, plaintiffs’ class action employment decide whether to accept the new terms. decision puts the Ninth Circuit and the Co., Inc. , 2016 WL 4598542, at *2 (2d tory language or undermine the reason - attorneys considering where to file a case In reality, they will simply click “accept” Seventh on one side of the split (notwith - Cir. Sept. 2, 2016) (petition for cert. filed ing of the Seventh and Ninth Circuits should note that the California Supreme so that they can continue working. If the standing their disagreement about the Sept. 26, 2016) (U.S. No. 16-388).) and the NLRB. Court has been less favorable than the updated agreement adds an opt-out pro - effect of an opt-out provision), and the Morris and Lewis examine the The California Supreme Court, how - Ninth Circuit on the NLRA issue vision, the worker may just have unknow - Second, Fifth, and Eighth Circuits on the language of the NLRA and the FAA, ever, reached a different conclusion from (Iskanian ) but more favorable on courts’ ingly “clicked” away his or her right to other, with petitions for certiorari now explain that the FAA’s savings clause pre - Morris in 2014, holding that a class waiv - ability to find procedural unconscionabil - engage in future collective claims against pending in four of the cases. 3 The issue serves contract defenses to arbitration er was not unlawful under the NLRA. ity notwithstanding the presence of any the company. is also pending and fully briefed in agreements ‘upon such grounds as exist (See Iskanian v. CLS Transp. Los Angeles, opt-out provision ( Gentry ). On the other hand, this evolving the Fourth, Sixth, Eleventh, and D.C. at law or in equity,’ 9 U.S.C. § 2, and LLC , (2014) 59 Cal.4th 348, 367-74.) Going forward, even if opt-out claus - technology may give rise to new opportu - Circuits. Given the great importance of conclude that the right to concerted At the time Iskanian was decided, no fed - es remain a valid tool for employers, nities to attack arbitration agreements. the issue, it is likely that the Supreme action in the NLRA is a ground existing eral court of appeals had adopted the some employees (likely only those who When individuals are asked to accept Court will soon settle the question. If the in law. (See, e.g., Lewis , 823 F.3d at 1158 NLRB’s view that class waivers violate the have a lawyer) will actually succeed in terms of which they have not had fair Supreme Court agrees that blanket class notice, the issue of contract formation can waivers violate the NLRA, the question be fertile grounds for a challenge. (See, of whether an opt-out provision cures Specializing in e.g., Segouros v. TransUnion Corp. (7th Cir. that violation will take on even greater Neuro-related injuries 2016) 817 F.3d 1029 (consumer did not importance. assent to service agreement containing There are good reasons to believe and Long-term care cases arbitration clause by clicking “I Accept” that the Supreme Court will affirm button on website). Helpfully for plain - Morris . First, Morris undoes much of the THE BESB T PEOPLE. THE BEST PRODUCTS. tiffs, courts “do not apply the so-called harm to employment class actions in ‘presumption in favor of arbitrability’ . . . California that was caused when the THE BEST PROCESSES. [when] the parties contest the existence of Supreme Court held that the Federal When yoou choose The Settlement Alliance-WEST, you gain an arbitration agreement . . .” ( Goldman, Arbitration Act (“FAA”) preempted access to skilled settlement planners, top-rated industry Sachs & Co. v. City of Reno (9th Cir. 2014) California courts’ prohibition on many 747 F.3d 733, 742.) In addition, the bur - class-action waivers as unconscionable, experts, and a strategic planning approach that reduces den is on the employer, as the party seek - (see AT&T Mobility v. Concepcion (2011) settlementent funding time and improves efficiency. ing to enforce the contract, to prove by a 563 U.S. 333), and the four dissenting Traci Kaas, CSSC preponderance that a valid contract was votes in Concepcion (Justices Ginsburg, Managing Partner OUR SERVICES formed. ( Ashbey v. Archstone Prop. Mgmt., Breyer, Sotomayor, and Kagan) now Settlement Planner Inc. (9th Cir. 2015) 785 F.3d 1320, 1323.) make up half of the Court. They may Certiﬁed Financial Transitionist™ Structured Settlements Government Beneﬁt Preservation The more clearly a plaintiff’s attor - soon be joined by a new colleague who, [email protected] ney can illustrate for the court how the like them, reads the FAA less expansively Trust Services Lien Resolution employer used the new technology to than the Concepcion majority did. QSF Adminiistration Medicare Set-Asides ensure that the employee would be Second, the Supreme Court has unlikely to learn of the opt-out agree - been presented with a circuit split in Mass Torto Settlementettlement Resolution Attorney Fee Deferrals ment, the greater the chances of estab - which the reasoning of two Circuits hold - lishing procedural unconscionability. ing that class waivers violate the NLRA, As aggressive as the Ninth Circuit has Morris (9th Cir.) and Lewis (7th Cir.), pro - recently been in allowing opt-out provi - vides a rigorous explanation of why the OUR CLIENTS sions to remove plaintiffs’ rights, its deci - earlier decisions by other Circuits going sions can be read to show that the door is the other way, some of which addressed DESERVE THE BEST. still open for arguments that opt-out pro - the issue in little depth, are incorrect. TTanisanis Kellyy,, Esq. visions were unfairly buried in an agree - The most recent circuit to confront this CAALAAALA Affiliate Member 800.354.2258 ment. (See, e.g., Kilgore v. KeyBank, Nat’l issue, the Second Circuit, stated that it Settlement Planner Ass’n (9th Cir. 2013) 718 F.3d 1052, 1059 “might well be persuaded, for the rea - [email protected] www.alliance-west.com (noting that arbitration with opt-out pro - sons forcefully stated in Chief Judge vision was not “buried in fine print”).) Wood’s and Chief Judge Thomas’s

30 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 31 “Opt-out” Trap , continued from Previous Page

Put more teeth opting out. This raises additional ques - ensure that they and their colleagues as well as disability rights and consumer tions. For example, when an employee have effective tools for enforcing the protection. www.gbdhlegal.com. in your dog-bite case succeeds in opting out of an arbitration employment laws. Endnotes agreement with a class waiver and then A guide to discovery 1 seeks to bring a class action on behalf of Johnmohammadi may also be distinguishable from many other cases on factual grounds. There, the Ninth Circuit was his co-workers, most of whom have not presented with uncontested factual findings that the plaintiff and the use of experts opted out, will courts allow the opt-out to “was fully informed about the consequences of [accepting the proceed collectively on behalf of the class action waiver], and she did so free of any express or BY RON BERMAN implied threats of termination or retaliation if she decided to whole group? This issue is beginning to opt out of arbitration.” 755 F.3d at 1075. Dog bites and pet-related injury claims to insurers have risen 2 be explored in the courts. (See, e.g., The authors represent the plaintiffs in this case. An en banc substantially over the years. The value of claims according to the petition is currently pending in the case, and on October 13, Bickerstaff v. Suntrust Bank (Sup. Ct. Ga. Insurance Information Institute jumped from $324 million in 2016) 788 S.E.2d 787 (named plaintiff’s 2016, the Ninth Circuit issued a request to the defendant for a Jhaveri-Weeks Goldstein response to the petition. 2003 to $571 million in 2015, showing a 76.2 percent increase. timely rejection of arbitration tolled the 3 See Lewis v. Epic Sys. Corp. , 823 F.3d 1147 (7th Cir. 2016); California accounted for the largest number of claims in the U.S. Patterson v. Raymours Furniture Co., Inc., 2016 WL 4598542 opt-out deadline for putative class mem - William C. Jhaveri-Weeks is a partner in 2015 at 1684 with a total value of $75.8 million. State Farm bers) (petition for cert. filed Oct. 7, 2016) and Byron R. Goldstein is an associate at (2d Cir. Sep. 2, 2016), as corrected (Sept. 14, 2016); Murphy Oil USA, Inc. v. N.L.R.B. , 808 F.3d 1013 (5th Cir. 2015); Owen. Insurance has stated that one-third of all homeowners’ liability (U.S. No. 16-459).) 4 Goldstein, Borgen, Dardarian & Ho , a Bristol Care, Inc. , 702 F.3d 1050 (8th Cir. 2013). payouts in 2014 were for dog bites and although actual claims Opt-outs are the latest chapter in the civil rights and workers’ rights class-action decreased by 4.7 percent, the average cost per claim was up by 15 long story of employers seeking ways to firm in Oakland, California. Their practice percent. Plaintiff demands for $1 million or more are not uncom - insulate their practices from classwide focuses on employment issues, including dis - mon in dog-bite cases. A recent New Jersey case in which a 5- challenge, and plaintiffs seeking ways to crimination and wage-and-hour violations, year-old girl was bitten in the face by a dog up for adoption set - tled for a total of $900,000.00 well before trial. victims can change their version of what happened in order to Despite strict liability statutes in most states which create avoid questions about any potentially provocative behavior they liability in the absence of scienter, negligence or intentional displayed just prior to the bite. They also have been known to behavior, in many cases it can still be difficult for plaintiffs’ over-dramatize their accounts of the incident by increasing such attorneys to get what they believe is fair and adequate compen - factors as the amount of time the attack lasted; the number of sation for their clients. times they were bitten and the intensity with which the dog bit. One reason for this is a lack of sufficient knowledge needed Statements by victims that the dog was trying to kill them tend to to fully understand important connections, patterns and sub - fall on deaf ears unless the type and location of the bite wounds tleties in the fact pattern of their case which often lay several lay - gives the victim’s fears real meaning. Adjusters and defense ers beneath the surface. Even though strict liability may apply, attorneys pay close attention to any fact pattern or claim that issues of provocation can turn a case upside down and at times does not fit what they expect to see based on past experience. end with substantial comparative fault, a defense under strict lia - Although there are many good sources of evidence in a bility, allocated to the plaintiff. Cases involving third-party land - dog-bite or pet-related injury case there are two sources that lord/tenant issues or pet-related injuries not involving dog bites often are the most reliable in contested litigation: the dog and such as knockdowns or fright cases present a whole host of other the bite wounds. difficulties for an attorney without the level of understanding A dog’s temperament does not change needed to give their client’s case the foundation it deserves. This article can be used as a guide to ensure that as much There are three things about dogs that make them very relevant evidence can be produced as possible. It is especially important evidence and why upon filing a lawsuit a demand for important that all claims be presented in a manner consistent production of the defendant’s dog should be made as soon as with accepted knowledge in related areas such as canine behavior possible. (1) Dogs are creatures of habit; ( 2) A dog ’s tempera - and bite wound evaluation and analysis. Failing to do so can ment doesn ’t change over time; (3) Dogs do not lie or change diminish the likelihood of early settlement. their behavior because they are involved in litigation. Typically a dog’s behavior can change due to old age, illness Witness accounts of the incident or injury or if they have been trained or had their behavior It is well understood that even eye witness accounts of inci - modified after an incident, but their temperament does not dents are often inconsistent and that dog bites can happen in change over time. That is why a forensic evaluation of a dog by the “blink of an eye.” Plaintiffs are not always clear about how a qualified expert is valid even years after the incident. A dog the incident happened or why. Even when they seem to be clear, with an aggressive temperament will always have an aggressive their descriptions of what happened are not always supported by temperament. Also, if a dog is aggressive at the door or towards the evidence, at least on the surface. Parties in litigation may not strangers on its territory, that behavior will likely be ritualized be truthful about the details of an incident or history of the dog. with time and repetition, making the same behavior likely to Dog owners often state that their beloved pets are not aggressive show up in an evaluation even years after an incident unless a and have never even growled once prior to the incident. Bite lot of work has been done to re-train the dog. 32 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 33 Dog Bites , continued from Previous Page

Below are areas regarding the sub - expert testimony presented to the jury time of the incident. If there is evidence adoption. Previous owners sometimes plaintiff? (3) Did the attack happen as location and number of bite wounds. All ject dog that deserve more than a super - led to a defense verdict when it was that the defendant’s dog bit someone don’t tell the rescue organization about the plaintiff describes? (4) Did the plain - bites are an aggressive display, but a dog ficial review as they may be very impor - revealed that the dog was partially crip - who was trying to take their food away, aggression issues because they are afraid tiff provoke the dog into biting him or that is provoked into defending itself and tant in both establishing your case and pled and nearly 20 years old at the time that evidence will only have weight if the dog will be euthanized. her? responds with a quick inhibited bite is avoiding unnecessary mistakes: of the incident. The average lifespan of your client was bitten in the presence of (11) Training – If the defendant’s Bite wounds are an actual physical qualitatively a different dog than one (1) Breed – Many attorneys litigating a Siberian Husky is 12-15 years at the food. If your client was attacked while dog has been professionally trained, pre - representation of the incident. They who runs up to and attacks with multiple a dog-bite case believe that if the defen - most. The plaintiff’s attorney did not walking down the street or riding a bicy - vious aggression may be one of the main stand alone as evidence even if the plain - deep punctures over different parts of dant’s dog is an “aggressive breed” such seem to be aware of this when his client’s cle, showing a history of food aggression reasons why. The trainer can be an excel - tiff was the only witness and the dog has the victim’s anatomy and has to be as an American Staffordshire Terrier or deposition was taken. may not support your case. lent percipient witness regarding the been euthanized. If the wounds are not pulled off the victim by the owner/ other breed commonly called a “pit bull,” (4) Size – Large breeds can cause Documents that are absolutely neces - dog’s prior behavior and what the defen - consistent with the plaintiff’s account or handler. that their case is in the bag. However this more damage, especially when the inci - sary in a dog-bite or pet related-injury dant knew about their dog prior to the in some cases with a dog bite at all, his or Defensive aggression is rarely true unless the case is being dent involves a child. Check the dog’s case are: hand-written veterinary records day of the incident. her credibility will likely be questioned. tried in a state or county in which “pit veterinary records at the date closest to of all dogs involved, animal control (12) Leash – Most cities have leash Dog bites typically present as punc - Dog-bite wounds are typically offen - bulls” have been declared a dangerous or the incident for the dog’s weight. In dog- records, any witness and first responder laws but a lot of them also require a dog tures, lacerations, avulsions and abra - sive or defensive. Dogs that bite in an vicious breed. It is important to focus on on-dog aggression cases where a person reports as well as training, grooming and to be restrained on a leash not over six sions. As bites are by nature crush effort to defend themselves from a per - the individual dog and refer to its breed is bitten, the facts about each dog includ - kenneling records. This expert has found feet long. If the biting dog was being injuries, deeper wounds often are accom - son who has provoked them by stepping as only a factor, but relying on the breed ing size and weight, the dynamics of how that personal interviews with neighbors walked on a retractable leash that was panied by contusions (ecchymosis is often on their tail or paw or who has put their alone to make the case that the dog was the incident happened and which one as well as anyone who had contact with extended over six feet it might be impor - written in medical records), otherwise face very close to a strange dog’s face dangerous or that the owner/handler was the aggressor can be important. the dog prior to the incident can pro - tant in establishing owner/handler negli - known as bruises caused by broken blood will often receive one inhibited bite. knew the dog was dangerous will fre - (5) Behavioral History – Individual duce vital evidence about the dog’s histo - gence. vessels around the central wound. Inhibited bites are where the dog con - quently be a risky argument and often behavior history is extremely important ry and what the owner/handler knew at (13) Exercise – Dogs that are under- trols the severity of the bite. In these Defensive and offensive cases, the dog is simply trying to remove one that will not carry enough weight. as each dog is an individual within a the time. Interviews should be done by exercised can build up tension that can wounds “Pitbulls” are no longer a dog for inner breed and may not present all or any of the retained expert as investigators typi - either fuel or intensify aggression. a threat. One quick bite usually succeeds Although all dog bites are serious in creating enough distance between the city neighborhoods and gang members the characteristics commonly attributed cally do not have the knowledge needed Bite wounds as they once were. Now they can be seen to a that breed. An in-depth investigation to ask the right follow-up questions or to from a medical standpoint and even by dog and the threat and no further quite often being walked in Beverly Hills into the defendant’s dog’s temperament clarify specific terms often misused by It is very important that the plain - an emotional standpoint due to the aggression is displayed. potential long-term damage they can do and other enclaves of the wealthy. and previous behavior is a must. Often the general public regarding dogs. Also tiff’s bite wounds support their account Offensive aggression America both loves and hates “pit bull” insurance carriers believe their clients experts can rely on “hearsay” evidence of the incident. Typically the main issues to the victim, there is a motivational dif - Offensive attacks, typically but not terriers and an “attack” on the breeds when told a beloved pet is a complete even if the witness suddenly decides they in a dog-bite case are: (1) Are the plain - ference between offensive and defensive always, involve multiple bites often to that make up this group can meet just as sweetheart and wouldn’t hurt a fly. They no longer want to be involved after giv - tiff’s wounds from a dog bite? (2) Is the aggression that shows up in the dynamics different parts of the body. They can be much resistance as it does support in a will only accept the possibility that their ing their first and only interview. defendant’s dog the dog that bit the of the attack as well as the type, depth, courtroom. client is not telling the truth if you prove (7) Socialization – Dogs that are not (2) Sex – Intact (un-neutered) male it to them with hard evidence. Owner well socialized, especially as puppies, dogs are involved in 70-76 percent of denial, in spite of clear evidence to the have a higher likelihood of aggression. reported dog-bite incidents (Wright J.C., contrary, is a prime factor in many bite This should be explored in the owner’s Canine Aggression toward people: bite incidents. deposition. WELCOME TO THE COOK ISLANDS scenarios and prevention. Vet Clin (6) Types of aggression previously (8) Inside/Outside – Dogs that are North Am Sm Ani Pract 1991:21(2): displayed – There are numerous types of kept outside and not allowed into the 299-314). canine aggression such as dominance home are typically poorly socialized and (3) Age/Health – Certain breeds see aggression, territorial aggression, protec - more likely to demonstrate aggression Offshore males become much more aggressive tive aggression, maternal aggression, etc. towards strange people and dogs. between one and three years of age. Even if a dog has demonstrated aggres - (9) Chaining – Dogs that have been Also, older dogs often become aggressive sion in the past, it can be problematic chained for long periods of time have is not out of reach. due to painful physical issues like hip when used as a support for your case been shown to be three times more likely dysplasia or eye issues like glaucoma. unless it directly relates to the incident to bite. (PETA.org) Typically, the victims Claims that older dogs, in poor health, being litigated. of chained dogs are children. Also some Cook Collection Attorneys, PLC ran up to the victim and jumped up on For example, dog-on-dog aggression states like California have laws against (877) 989 4730 them typically meet with strong resist - does not relate to dog-on-human aggres - chaining a dog for more than three www.cookcollectionattorneys.com ance from the defense. A recent serious sion. Having evidence that the defen - hours at a time. injury case went up in smoke when the dant’s dog has attacked other dogs or (10) Stray or rescue – Many stray victim testified about how her neighbor’s animals in the past is not evidence that dogs or rescue dogs are wonderful pets David J. Cook, Principal Attorney Siberian Husky ran full speed down the will be helpful, if your case is strictly dog- but there are a fair percentage with Collecting judgments for California plaintiff attorneys since 1974. driveway and leaped at her, causing her on-human aggression and your client did behavior issues which may be the reason [email protected] to fall. Veterinary records, witnesses and not have a dog with him or her at the they were on the street or put up for

34 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 35 Dog Bites , continued from Previous Page

provoked based on the specifics of the rough play. Certainly, the victim of the the evaluation were ordered by the judge and where to find evidence that is not Every juror is a dog “expert” know and confirmed in what they do incident and whether or not the dog’s bite is not intending to threaten or hurt and there was nothing the plaintiff’s readily available through normal chan - know. level of aggression was grossly out of pro - the dog but nevertheless their actions can expert could do. nels. Lastly, they need to know how to That all experts need to be properly Most importantly, dogs are basic and portion to the actions of the victim, but be viewed as likely to cause a dog to feel Suddenly, the dog started growling and complete those tasks in a professional vetted is well known. In cases involving real. Your expert’s testimony must reflect most often are unprovoked, meaning the threatened and bite. Dog-bite incidents leaping wildly in the air. The expression on manner that does not create impeachment dog bites and pet-related injuries, it is that with their tone and language. victim’s actions just prior to the incident often are the culmination of a complex the defense expert’s face was priceless as opportunities when facing an aggressive vital to go over each and every area of would not be considered something that interaction that on the surface can appear he started to lose control of the dog and cross examination. Experts that only the litigation that the expert might be Ron Paul Berman is an is likely to cause a dog to bite. A particu - confusing at best. Each dog, victim and clearly didn’t know what to do next. Just review what is sent to them by attorneys asked about. He or she must have expert expert in the forensic investi - lar dog, due to one or a combination of incident is unique. All the facts should be as suddenly, he turned and quickly took and do not do their own independent qualifications in every area. Just calling gation and litigation of dog factors such as poor socialization and reviewed and interpreted before a deci - the dog back into the house while the investigation can appear to be nothing yourself a dog expert does not make you bites and pet-related injuries. fear aggression may interpret an out - sion on whether the victim provoked the evaluation was still in progress. but “hired guns.” an all-purpose expert. Has the expert He is a Certified Forensic stretched hand as a threat and bite it, but dog or not can be accurately made. In What actually happened was that a Dog experts come in all shapes and offering opinions on dog-bite wound Expert, an approved expert in the eyes of the law, a friendly and most cases this requires an expert opinion neighborhood cat came out of nowhere sizes and their experience and training evaluation been published on that topic? for the Superior Court of Los common gesture such as reaching out to after a complete forensic investigation and started walking slowly behind the vary greatly. Some offer opinions on Unlike construction defect cases or slip- Berman Angeles and a licensed ani - pet a dog is not provocation. ( Ellsworth v. and evaluation of all relevant discovery. plaintiff’s expert who was videotaping dogs trained in aggression such as and-fall cases involving specific gradi - mal evaluator. He has testi - Elite Dry Cleaners, etc., Inc . (1954) 127 everything. When the dog saw the cat “all police dogs and guard dogs, but have ents, people know dogs or at least believe fied in municipal, civil, criminal and federal Discovery Cal.App.2d 479) and walking toward hell broke loose.” Even though dog-on- no actual experience training dogs in they do. Every juror will have had some courts as well as local dangerous dog hearings a dog does not constitute provocation. Dog evaluation cat aggression does not relate to dog-on- Shutzhund , a technique developed in experience with dogs. Some will have both in deposition and trial on over 260 occa - (Chandler v. Vaccaro (1959) 167 Cal.App.2d As the dog is one of the two most human aggression, once the defense got Germany in which nearly all police dogs been bitten. More than anything they sions nationwide. See www.dogbite-expert.com 786.) (dogbitelaw.com) valuable pieces of evidence, it is, in this a copy of the video of their expert trying are trained. need to be educated in what they don’t or email at [email protected]. Any dog bite or attack is serious expert’s opinion, always a good idea to to hold down their client’s out-of-control, from a medical and or emotional stand - have the dog evaluated by your expert as growling dog, they promptly settled the point; however from a behavioral stand - soon as possible. In many cases, the dog case. point a serious attack can be defined by has already been euthanized and an eval - Dog owners like to say good things one or more of the following factors uation is not possible, but if the dog is about their dogs in deposition but it being present: (1) Multiple wounds; alive and available, this opportunity never helps their credibility when they (2) Shaking; (3) The dog won’t end the should not be missed. The reason to do testify that their dog is well trained and attack on its own. Attacks that include all the evaluation quickly is because dogs responds quickly to commands and a three factors are clearly the most serious. can die, run away or get seriously injured video of their dog doing just the oppo - Shaking, which is part of a predatory after being hit by a car, etc. site is shown at trial. These moments sequence of behavior related to killing Aggressive dogs almost always turn out to be like scenes from “America’s prey, as well as a dog that won’t end the demonstrate their aggression in well- Funniest Home Videos.” Entire court - attack without outside intervention, is conducted evaluations. There is never a rooms erupt into laughter at the defen - part of the fact pattern of many fatal guarantee, but that has been the general dant’s expense when their dog, by its dog attacks. rule in this expert’s experience. This is behavior, essentially calls them a liar. especially true when the defense doesn’t Of course, if the defendant is telling the Attack dynamics want to allow you to evaluate the dog. truth, the video will back them up. The There are often solid explanations It may just be the defense’s unwillingness point is that dogs tell the truth and juries why a particular wound pattern does not to give up any information or control, or know it. seem to add up, but they are typically it may be that they are trying to keep you only available to attorneys through from seeing what they consider to be a Experts expert opinion after a thorough analysis. real problem for their case. There are only a handful of self- For example, where a stranger trying to In a recent hard-won evaluation that titled dog experts in the United States kiss or hug a dog would clearly be had to be ordered by the court, the plain - who have more than a very limited provocative…a person who is very famil - tiff’s expert was wondering how he could amount of experience in court. Many iar with the dog and who has kissed and do a proper evaluation at all. When the more would like to act in an expert hugged the dog on numerous occasions battle was over, all he was allowed to do capacity and offer their services without previously with no warnings or aggressive was observe and video the dog while it the background needed to ensure that response may not meet the criteria of was held in a static sitting position by the attorney who hires them gets the provocation due to their history with the the defense’s dog expert. The dog, an high level of service they expect. Your dog accepting the behavior. Provocation American Staffordshire Terrier who bit expert should know exactly what docu - can be intentional like kicking or hitting a man that was reaching out to shake ments you need and what actions need to a dog or unintentional such as a person hands with the dog’s owner, just sat there be taken in order to maximize all discov - not very familiar with the dog initiating and didn’t move. These limitations on ery options. Also, they need to know how

36 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 37 Saving the American Dream believed she needed to do so if defendant benefit. To prove the existence of a fidu - In Mary’s case, she had the facts to daughter was going to help her. Mary ciary or confidential relationship, a prove a fiduciary and/or confidential believed that adding defendant daughter plaintiff must show that the elder placed relationship. Defendant daughter was The powerful undue-influence presumption onto title to her home was like adding trust and confidence in the integrity and listed on Mary’s bank accounts, paid defendant daughter to her bank account fidelity of the defendant. ( Wolf v. Superior Mary’s bills, and helped Mary fill out in litigating financial elder-abuse cases – it would still belong to Mary, but defen - Court (2003) 107 Cal.App.4th 25, 29-30) paperwork. In terms of medical care, dant daughter was there to assist her, not Familial relationship and control over defendant daughter drove Mary to med - BY REBECCA DIEL house. Most importantly, the house was The equity of the result : economic con - to take over ownership or complete con - the property of another are two of the ical appointments, refilled her prescrip - Mary’s only asset aside from her modest sequences to the elder, divergence from trol. The only thing Mary recalled from most important factors in establishing a tions, and was listed as a decision maker AND ERIN GUY CASTILLO retirement, and Mary had ongoing elder’s prior intent or course of conduct the later transaction was defendant fiduciary or confidential relationship. and responsible party on Mary’s health- It is no secret that the Baby Boomer medical expenses. or dealing, relationship of the value con - daughter told her to get in the car, and (Johnson v. Clark (1936) 7 Cal.2d 529, care forms. The second prong was easier generation is reaching seniority, and that Our minds quickly turned to veyed to the value of any services or con - that they were going to the County 534; Vai v. Bank of America Nat’l Trust & to prove; it is not hard to convince a jury life expectancies are longer today than they thoughts of financial elder abuse and sideration received, or the appropriate - recorder’s office to fill out some paper - Sav. Assoc. (1961) 56 Cal.2d 329, 338.) If that two transactions that deprived an have ever been. With a larger elderly popu - undue influence. Financial elder abuse is ness of the change in light of the length work. Defendant daughter placed a paper you can prove a fiduciary or confidential 80-year-old woman of her only asset were lation and a longer lifespan, elder law has defined broadly in California Welfare and and nature of the relationship. in front of Mary and told her to sign it. relationship and that the transaction not beneficial to her. 2 become a burgeoning area for practition - Institutions Code section 15610.30. A Rather than relying on Civil Code Mary felt intimidated by defendant was not beneficial to the elder, the law Use jury verdict forms to your ers. In 1982, the California Legislature person is liable for financial elder abuse section 1575, which defines undue influ - daughter’s forceful tone, but trusted that presumes that the property was taken advantage passed the Elder Abuse and Dependent under the law if he or she takes, secretes, ence as “the use, by one in whom a confi - the document was something that would through undue influence, and the bur - Adult Civil Protection Act (EADACPA) to appropriates, obtains, or retains real or dence is reposed by another, or who benefit Mary, as defendant daughter had den shifts to the defendant to rebut the The case law on what the defendant address growing concerns of elder depend - personal property of an elder or depend - holds a real or apparent authority over always helped her with forms and filling presumption. must prove to rebut the presumption is ence on family and caretakers. In a world ent adult for a wrongful use or with him, of such confidence or authority for out paperwork. The result was devastat - in which it is common for the elderly to intent to defraud, or both, or by undue the purpose of obtaining an unfair ing. When Mary wanted to create an add children and other trusted persons to influence as defined in section 15610.70 advantage over him,” section 15610.70 estate plan, she learned for the first time bank accounts and on title to houses, elders or assists in doing any of these acts. codifies much of the case law discussing that she did not own the home that she are in a legally and financially vulnerable Welfare & Institutions Code section section 1575. The factors outlined above had worked three jobs to pay for and had position. Misplaced trust and reliance can 15610.70 defines undue influence as are considered part of the statutory raised her family in. The home was her have a major impact on families and lead “excessive persuasion that causes another scheme aimed at protecting elders only major asset. We felt confident that to various legal issues, namely financial person to act or refrain from acting by from abuse. we would be able to prove all of the fac - elder abuse and undue influence. Through overcoming that person’s free will and It was apparent immediately that tors of undue influence to show financial 3 a case study, this article will demonstrate results in inequity.” To determine if an Mary was a textbook example of a plain - elder abuse at trial, should we need to. elder’s free will has been overcome tiff who would be vulnerable to undue the power of the presumption of undue Presumption of undue influence influence and the impact this presumption improperly, section 15610.70(a)(1)-(4) influence. She is of advanced age, has a can have on elder-abuse lawsuits. lists a number of factors for the factfind - third grade education, cannot read or While Mary had the facts necessary er to consider: write English, and had depended and to prove all the factors of undue influence Meeting the client Vulnerability of the victim : age, educa - relied on defendant daughter for help outlined above, there is a more efficient Our client, a 79-year-old woman tion, impaired cognitive function, emo - for several years. way for a plaintiff to meet her burden of named Mary Smith, 1 came to us when tional distress, dependency, and whether Defendant daughter had both proof. The second way to prove undue she learned that she had been removed the influencer knew or should have apparent and actual authority over influence requires a plaintiff to clear a from title to her house. Mary had gone known of the vulnerability; Mary as she had been on Mary’s bank lower evidentiary hurdle. This method of to the county recorder’s office to add her Influencer’s apparent authority : fiduci - accounts, was Mary’s caretaker, had been proving undue influence has the benefit children to the deed on her home, and ary or confidential relationship, family designated as a decision maker for of allowing an elderly plaintiff, such as discovered that she was not the record member, care provider, health care pro - Mary’s healthcare decisions, and routine - Mary, to establish fewer factors and once owner. The house was in the name of her fessional, legal professional, spiritual ly helped Mary fill out paperwork and she does, it then shifts the burden of daughter, the defendant, who was the adviser, or any other kind of expert; handle business affairs because of Mary’s proof to the defendant to show that the youngest of Mary’s five children and Actions or tactics used : controlling nec - limited education and language skills. transaction or taking of property at issue Mary’s longtime caretaker. Reviewing the essaries of life, medication, interactions Defendant daughter had initiated was not abusive. This is a huge advantage chain of title revealed that defendant with others, or access to information or the change in ownership on the house in a legal landscape where the plaintiff daughter had added herself onto title as sleep; use of affection, intimidation, or through two deed transactions. almost always has the burden of proof a co-owner, and then a number of years coercion; or initiation of changes in per - Defendant daughter had added herself and few options exist to shift the burden. later removed Mary entirely. Mary had sonal or property rights, use of haste or to the home initially, and then removed The presumption arises to shift the worked three jobs to afford this house secrecy in effecting those changes, effect - Mary altogether a few years later. Mary burden of proof required Mary to prove and raised five children there, including ing changes at inappropriate times and had no recollection of the initial deed two things: (1) a fiduciary or confidential defendant daughter. As the matriarch of places, or claims of expertise in effecting transaction , other than she recalled defen - relationship between the parties; 4 and her large family, everyone met at Mary’s changes; and dant daughter being added because she (2) that the transaction was not to Mary’s

38 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 39 American Dream , continued from Previous Page

voluminous and varying. In reading The jury found that defendant defendant must prove: fairness, dozens of cases and analyzing what the daughter had not met her burden as to absence of undue influence, and with Profile: John Burris court considers in determining if the pre - one transaction, and that the other was full comprehension. By asking the jury sumption has been rebutted or not, three fair, but it was not free from undue influ - to think about each factor separately, themes become clear. To rebut the pre - ence or done with full comprehension you triple your chances that the defen - Civil-rights activist has been holding law enforcement sumption of undue influence, defendant with the results. Both deeds were can - dant has not met his or her burden of daughter had to prove three things by a celed and the home was returned to proof. accountable for more than four decades preponderance of the evidence: (1) the Mary. In talking with jurors after the conduct or transaction was fair, (2) free case, we learned that they only found Rebecca Diel is a trial BY STEPHEN ELLISON and bias in musings inspired him “to do something from undue influence, and (3) with full that one transaction was fair because attorney at Parish Guy the African- with my life.” So he kept pushing, mak - comprehension of the results. ( Myrick Mary had retained a half ownership in Castillo. She began her For renowned civil-rights attorney American ing career decisions that ultimately led v. Bruetsch (1936) 13 Cal.App.2d 219, the home when defendant daughter career with the firm shortly John Burris, being a lawyer has been community him to do the work he’s doing today. 224; Cox v. Schnerr (1916) 172 Cal. added herself on to title, and not because after graduating from law about more than merely practicing law, certainly had Burris’ first in-depth case centered 371, 379; Sparks v. Sparks (1950) 101 Mary had intended the results of the school in 2014. She is admit - more than just trying good plaintiffs’ an influence on police misconduct that occurred in Cal.App.2d 129, 135-136.) An important transaction. They wanted the home ted to practice in all cases, more than just prevailing in the on that 1979 when a 14-year-old African- consideration in this analysis is whether returned to Mary and believed Mary only Diel California state courts and courtroom. It’s been about making an decision. American boy named Melvin Black or not the plaintiff had independent added defendant daughter because of the United States District Court for the impact on clients’ lives and society as a “One of was shot multiple times and killed by advice before the transaction. ( Ibid. ) If defendant daughter’s influence over Eastern District of California. whole. the things Oakland police officers as he was run - the defendant fails to prove any of the Mary. “I’ve always wanted to bring about I always did ning away. He was appointed by the three factors, the presumption remains Erin Guy Castillo is an change,” said Burris, founder of John as a kid: I mayor and City Council of Oakland to Conclusion in place and the transaction is canceled experienced trial lawyer, han - Burris Law Offices in Oakland. “It was was a reader conduct an independent investigation because of the undue influence. To safeguard a population that often dling exclusively civil trials never enough for me just to do the case. of newspa - into the shooting. Because we met our burden of proof, suffers from confusion or memory loss, and appeals in a wide variety In my criminal defense work, I couldn’t Burris pers about “You know, it seems unreal now, but the burden shifted to defendant daugh - the law applies a presumption of undue of matters, including business see changes coming about; all I could public it did happen,” Burris said. “I was a ter to prove the three parts and over - influence upon a plaintiff’s showing of a disputes, real estate, probate see was that you do a case, the case gets events; young guy at the time, and I set up this come the presumption. She was unable fiduciary or confidential relationship and and trust litigation, personal done, and then you do another case. I watched the civil-rights movement, lis - investigation. I hired an investigator, and to do so. an unfavorable transaction. This pre - Castillo injury and property damage. I didn’t feel satisfied just doing the case. tened to all the big guys, always process - we worked on this investigation for a To maximize our chances of a plain - sumption is a powerful weapon in finan - Representing large companies Civil-rights work allowed me to at least ing information,” Burris recalled. “I was number of months. At the end, I con - tiff’s verdict, we asked the jury to make a cial elder-abuse litigation, particularly to small businesses and individuals, she has give more thought to bringing about always watching my dad, listening to cluded that the shooting was unjustified, separate finding on each of the three ele - when your client has limited or no mem - served as lead trial counsel in several jury change – and that started to happen black men talk, watching the TV, and this poor tactics, poor judgment, etc. That ments on the verdict forms. Since our ory of the events in question or you are and court trials, including prosecuting cases very quickly.” burning desire developed in me. I had a sort of started me on my way; it really case had two different deed transfers at unsure that you can prove all the factors to verdict or settlement reaching more than a Indeed, Burris has long been an strong interest in current events and showed me there was no real commit - issue, a jury finding that one of these fac - listed in section 15610.70. million dollars. She has also successfully activist lawyer against police brutality, started reading the newspaper when I ment to the truth by the police depart - tors was not met would mean that defen - The policy considerations behind defended clients at trial and on appeal. misconduct, racial bias and profiling. was very young. In fact, my dad used to ment and/or the political leaders. dant daughter did not rebut the pre - the financial elder-abuse statutes are Erin is admitted to practice in all California Those issues have been at the center of get mad at me for getting the newspaper “This was a firestorm that had taken sumption of undue influence as to that compelling and universal. Protection of state courts and the United States District his crusade to ensure law enforcement, before he got a chance to read it. I was place, and in my own mind’s eye, it was transaction and the deed would be our vulnerable elders is a concern that Court for the Eastern District of California. and city officials are held accountable for always curious about the world at large.” really for me to try to give some comfort unlawful behavior and unconstitutional As a youth, Burris saw firsthand the level to the police and the city officials voidable. transcends culture or class. Children, Endnotes Defendant daughter argued that the caretakers, and fiduciaries have a legal treatment of people of color. Even before differences between whites and blacks, that they had acted properly,” he contin - 1 Names have been changed from the original case. the current-day cases in Ferguson, and it had an impact on him. No one ued. “But once I finished my investiga - test to rebut the presumption was dis - responsibility to ensure that the elderly 2 Unless otherwise noted, all references will be to California junctive – that if the jury found any one are informed, educated on their personal law. Missouri; Baltimore; Charleston, South had ever deliberately been discriminatory tion and gave my report about it, they of the three factors had been rebutted, and business affairs, and in a stronger 3 Section 15610.70(b) reads that “[e]vidence of an inequitable Carolina; and Oakland; and even before toward him, he said, but the words of one never spoke to me again. That to me was position to rebut the presumption of result, without more, is not sufficient to prove undue influ - such high-profile past cases as the beat - teacher stuck with him. a clue that I don’t think I was well there was no undue influence and she ence.” Therefore, there must be more affirmative action than should retain the home. Defendant undue influence. just an outcome that is unfair to the elder. ing of Rodney King, the fatal shooting of “I remember a teacher telling peo - received.” daughter’s argument fails both under the Utilizing the undue influence pre - 4 While these are different legal relationships, they have the Oscar Grant and the infamous Riders’ ple in this one class, ‘None of you are Blue-collar background, case law and on policy grounds. If rebut - sumption shifts the burden of proof to same effect in the context of undue influence. (See Wolf v. case involving Oakland police miscon - going to go to college,’ and I was very Superior Court (2003) 107 Cal.App.4th 25, 29-30); ( In re segregated schools duct, Burris not only challenged the laws much offended by that,” he said. “But ting only one factor were all the law the defendant to prove that the trans - Estate of Cover (1922) 188 Cal. 133, 143.). required, the presumption would not action in question was not abusive. A that seemingly protect law enforcement in retrospect, I think he was just trying Burris grew up in Vallejo, a Bay Area shift the burden at all. A transaction can failure to prove any of the three factors officers, but he also fought to establish to motivate us. It certainly motivated working-class, blue-collar town that also be fair, but done without full comprehen - results in a plaintiff’s verdict and victo - meaningful reforms in how such officers me.” was somewhat segregated during his sion of the elder. For the presumption to ry for your elderly client. To maximize conduct themselves. As he grew older, Burris continued youth. Sports teams were always integrat - offer the protection intended, all three the breadth of the presumption, make While Burris may not have chosen to read the work of writers such as novel - ed, however, and the young Burris factors must be rebutted for a transaction sure the jury verdict forms seek a sepa - law for the sole purpose of doing such ist Richard Wright and investigative played baseball, basketball and ran track to be valid. rate finding for each of the factors the work, his exposure as a child to racism journalist Jack Anderson, and their alongside mostly white teammates.

40 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 41 Profile: Burris , continued from Previous Page

Then something happened that gave Introduction to police-brutality particularly happy about, he said. to start thinking that every confrontation that wrong, and then the money will flow talking with young African-American him an opportunity to be on relatively claims Initially, Burris thought the criminal is not one that necessarily should result where it flows.” boys because he believes they’re in dan - equal ground with white classmates. After law school, Burris went to work defense arena would mean less exposure in death, particularly when you’re deal - ger if they get on the wrong side of a Impactful stories “I got pulled out of the black school for a large law firm in Chicago, Jenner to police bias and misconduct, but he ing with mentally impaired people,” police officer’s discretion. “So I try to and sent to another school, a white and Block, because, he said, it gave him still saw it early and often, the racism Burris said. “Even if that person is hold - When he’s not working, Burris protect kids, young people by giving school, where essentially my sister and the impression that it was a socially con - that existed within it, he said, and it ing a knife – because the knife in itself enjoys spending time with his wife of 15 them the rules of society – that’s a big I were the only black people on the cam - scious firm. While there as a summer weighed on him. should not be a death warrant.” years. They go to the theater and the cin - part of what I do, making sure they pus,” he recalled. “It was in fourth grade. associate, he worked on the Metcalf “I just felt what I was doing wasn’t In court, Burris’ purpose is demon - ema, not necessarily for the entertain - understand that you may not want to I don’t know why it happened, but it did Commission, investigating police- why I went to law school, and I told strating that his client’s rights were ment aspect but to see and hear a good deal with it, but you have to give black happen. I did well there, and that cer - brutality claims in Chicago. myself I needed to do more civil-rights abused, regardless of whether race plays true-to-life story, he said. Burris also is an boys the talk,” he said. “And I do, 13 tainly allowed me to think I was competi - “That really sparked my interest … work,” he said. “We had a good firm into the matter. In fact, he said he tries avid reader, mostly perusing nonfiction years old and up. I have two grandsons tive with everyone.” because I had watched much of the civil- going; the most fun I ever had as a lawyer not to use race if he can help it because it books and the New York Times, sating at that age now, and I give them the talk When he finished the fourth grade, rights movement unfold from California, was with those two guys. But I ultimately turns jurors off. He looks at what he can his appetite for “information about the and constantly reinforce with my own Burris was sent back to the all-black and I was appalled at seeing what the left to start my own practice.… So I start - prove and how he can prove it. Dealing world in which we live,” he said. sons about the talk.” school. He saw racism early, in the sev - police were doing with the dogs and the ed to get more into police litigation, and with the police culture – people for the “I have great empathy and pain in Giving aspiring lawyers the talk is enth or eighth grade, even in sports, he beatings and all that,” Burris said. “That my practice took off from there.” most part want to believe the police – is my heart when I read about how other another matter altogether, and Burris said. He played on an all-white baseball piqued my consciousness, and so when I another obstacle, he said. black people live and how they’ve been said there is one key element that rises Working to improve the disparity team during those middle school years was in Chicago, it sort of gave me a chance “The issue of the case to me when killed,” Burris said. “The other day, above all the rest. and then switched to a black team during to develop that undercurrent of what I Two major police issues Burris is I’m dealing with the police is: what is the I was reading New York Magazine about “Passion counts. You can’t do what high school. wanted to do with my life as a lawyer.” most concerned about are racial profiling tiebreaker?” he said. “It’s not an original Wilmington, North Carolina. In 1898, I do without passion,” he said. “More Burris attended Vallejo Community After two years in a permanent posi - and dealing with the mentally impaired. concept – I sort of got that from one of the white people in that town assassinated lawyers come to me just because they’re a College and then Golden Gate University, tion with Jenner and Block, he worked Profiling is an important issue to Burris magistrates years ago. When I talk to my the black leaders, just killed them lawyer. I don’t want good lawyers; I want where he earned a bachelor’s degree in as an assistant state’s attorney in Cook because, while the spotlight always turns lawyers, I want to know what the tiebreaker because they were tired of them leading. passionate lawyers. So I tell people make accounting. He went on to earn an MBA County, Illinois, for about a year before to police when there’s an officer-involved is. The cops are going to lie – they’re My heart goes out to those people sure you have some passion for what from UC Berkeley Graduate School of returning to the Bay Area to help raise shooting, the vast majority of cases that going to tell their story. I say that because because I can visualize how it must have you’re doing. Of course, you have to Business and then decided to go to law his young son. Back in the East Bay, he manifest discriminatory law enforcement, if they’re not lying, then I shouldn’t have felt and the pain they felt and the fear prepare and all that, but if you have a school at Berkeley. worked as a prosecutor in the Alameda he says, involve racial profiling. For the case. If they’re telling the truth, then they felt. … I want to know about this passion for it, then it’s not work.” “In law school, I became much more County District Attorney’s Office for example, when people are pulled over that means my (client) is not truthful. history because I have to communicate aware of what you could do as a lawyer about two years and then decided to without probable cause or are stopped “I’m probably geared more toward it to the next generation.” Stephen Ellison is a freelance writer from a civil justice point of view,” Burris open his own practice with two friends, with pretext, then are searched and liability than damages,” Burris added. Burris has done a lot of that type of based in San Jose. Contact him at said. “My professors that I had, particu - Dave Alexander and Elihu Harris, who handcuffed. “For me, it’s about the wrong and proving communication, spending his spare time [email protected]. larly Judge Henry Ramsey, really sort went on to become mayor of Oakland. “And if they protest, they wind up of channeled my energies around civil That practice consisted mostly of crimi - arrested for resisting arrest and ultimately rights.” nal defense work, which he wasn’t have a dire consequence in their lives,” he said. “It’s a huge issue. We have the data – and when we look at the numbers, these WORKPLACE RIGHTS disparate numbers, the question is why do we have those numbers? And what can NO RECOVERY = NO FEE we do to dial it back? I’m hopeful over Call for FREE consultation time that strategies will be developed. … Kevin Kearney There’s certainly an implicit bias that has Generous referral fees paid per State Bar rules Expert Witness to be dealt with. But efforts are being made by certain focus groups to try to get Over 35 years of Construction officers to understand what they’re doing and what they should not be doing.” Over 20 years of Consulting As for treatment of the mentally impaired, Burris said people are dying Construction Litigation and Management because of the manner in which the police are dealing with them, basically BAY AREA/NORTHERN CALIFORNIA treating mentally impaired people as if they’re normal people, expecting them to 415.819.1157 www.3ca1lifo0rn.i2ala7bo3rla.w3a1tto8rn0ey.com www.kearneyobanion.com respond to their commands, when some [email protected] of them just don’t get it. “My view on this 9255 Sunset Blvd., #411, Los Angeles, CA 90069 is we want to save lives and get the police

42 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 43 will be remarkably similar and often are familiar with the site and the conduct so are other percipient witnesses who The intangibles identical. Experience with such cases is a of motorists on it, the frequency, or lack, may have “expert” information or even valuable asset in tilting the probable out - of previous accidents or “near-misses.” opinions that can assist your case. From come. Also, experts frequently consulted The knowledge of what “notice” the my own experience, the following is a list of a highway-design case like to work with lawyers they know and governmental entity(ies) had. A rural of “percipient” witnesses one might con - respect; they are as interested in “win - Central Valley community denied knowl - sider: (1) the service station operator at ning” the case for their own resume. edge of a pothole in the roadway which the corner of the intersection who did These are difficult, costly cases. A strong theme and the precipitated a major roll-over, only to not see the subject accident but has wit - It’s a small world enter settlement when a white ring nessed many “near misses” at the uncon - right mix of “expert” witnesses can help you beat the odds As much as plaintiff lawyers trumpet around the hole of the type acknowl - trolled intersection; (2) the local police By e. robert “bob” wallach design to prevent an activity that can the feeding trough who provide indis - their devotion to the cause of bringing a edged to show areas in need of repair, officer who responds to incidents at the cause injury on a roadway, it means the pensable skills in projection of evidence, just result to an injured client, the reality weathered from its long duration, refuted same location; (3) the tow truck driver There are many excellent exposi - responsible entity should have been on reconstruction demonstrations, light, is that trying cases on a contingency is their claim of ignorance. The old maxim who retrieves damaged vehicles after tions of the complexity, challenges, pit - notice of how your accident could have sound, environmental considerations – also a business. Like all business, the cal - “visit the scene” remains true. prior accidents ; (4) the short-haul driver falls, and substantive legal issues that sur - been prevented. the list goes on. culation of cost of investment versus A highway design case must demon - for the local dairy; (5) the local utility round this truly difficult arena of litiga - The reality that mere seconds can While it is now sacred lore that this potential success that justifies it is inher - strate the inherent danger of the roadway meter inspector who has worked in the tion. This is not one of them. It is, irretrievably alter an entire lifetime must retinue of shock troops must be utilized ent in the decision to take on such a case. and that the danger has existed for a sig - county for many years. These “percipi - instead, a compilation of observations underlie the thematic approach to how to effectively communicate the plaintiff’s The advantage of the experienced high - nificant period of time. It must show that ents” may have a wealth of information borne of four decades plus of represent - you discuss the safety and its relationship position, it can be argued (as I do) that way design plaintiff lawyer is knowledge the government knew or should have on how long the condition has been ing plaintiffs in what are now called to roadway design. This theme will guide jurors are the last to join that chorus. For of the terrain – issues raised, substantive known of the danger. It must be shown there; their own perceptions of the “highway-design cases.” The content of the significance of the technical evidence jurors, experts are no longer independ - law, statutory hurdles, quality of defense in the face of traffic studies that will show danger and how average drivers perceive those that have offered guidance are related to design issues and allow jurors ent vessels of absolute truth, but are counsel (also a fairly limited number of days, weeks, months, and often years of the dangerous condition; and the extent valuable. These thoughts are not a substi - to understand it in the context of their instead bought, well-paid advocates highly talented and experienced advo - accident-free use of this same roadway. It of prior incidents that have occurred tute. They are intended to augment and real world experiences as vehicle drivers. trained in how to appear neutral. cates), and, perhaps most of all, personal may extend to hundreds, thousands, even before. make more effective the tactics and tech - The concept of safety as a theme Are the jurors wrong? Sometimes. knowledge of the strengths and lack of multiples of those who traversed without All may strike you as obvious, and to them among the experts which everyone incident. How can an attorney overcome the experienced highway design advocate niques of trying this unique category of during litigation is a way of presenting a The line-up of experts personal-injury litigation. The basic defendants’ responsibilities to the plain - in the limited sphere of these cases so powerful a logical refutation of the it, and much more, is. The underlying topics that I have selected to cover are: tiff – and subliminally to the jurors them - In a highway (street) design case you knows and has either called as a witness imperfect design theory? Demonstrating decision as to whether you undertake 1) Safety as a theme in your case; and selves. While this may seem painfully can predict, with certainty, the expert or cross-examined. what “should have been known” based such a case is the same as in any repre - 2) Non-traditional “percipient” experts. obvious and has been expressed in many line-up: a traffic engineer, a reconstruc - It is not that an able, conscientious upon a history of the terrain as viewed by sentation – “do you feel you have the fine treatises for the trial lawyer, there is tion expert, a photo/video recreation of lawyer cannot do a credible job of repre - those who either drive or observe traffic skill and/or experience to give the client Safety as a theme a reason for the infrequency of favorable the accident “as it happened.” In a senting the plaintiff in this sub-venue of in their routine, can be the basis of a all the advantages deserved?” It is no dif - First and, arguably, foremost, is the plaintiff results. 1930’s Errol Flynn ancient-England the personal injury case; it is that the risk powerful refutation of an expert’s more ferent than any decision made that has theme of Safety. It is imperative that plain - The skill and credibility of govern - movie you would see bags of gold being factor is heightened. It is not that the academic rationale. consequences for another – “do you tiffs’ counsel remember that this accident ment highway and street engineers is for - thumped heavily on an oaken table to able, conscientious lawyer cannot deter - know your limitations well enough to Find the “regulars” at the really did happen and it took only a mat - midable. CalTrans is the reigning model ensure the allegiance of the “witness.” mine whether the outcome potential war - overcome them?” Hopefully, I have scene ter of seconds. A trial will take days, weeks, for much of the world in advancing safe Well, the mode may have changed but rants the investment; it is that the most provided you with a few ideas of how to even months, but the jury must under - transit. Local traffic engineers are well the relationship remains the same. The intelligent effort may be thwarted by the Unavoidably, this is an obvious area overcome the barriers one may face when stand that in a matter of seconds, a great trained and almost always pleasant and lawyer for plaintiff goes into a highway- old rubric “be wary of not knowing what for paid expert testimony. You can pre - taking on a highway-design case. tragedy resulted. Extended periods of evi - well-intended. Virtually every case design case knowing that major dollar you do not know.” dict with certainty that for every profes - dence can blur or eliminate the reality that involves an inherent criticism of these expenditures will be required just to Too often the jury is correct in their sional expert plaintiff calls, an equally Rains Lucia Stern, PC, the plaintiff was caught in an uncontrol - trained professionals. Jurors require a entice the witness. The ultimate opinion skepticism about the paid experts, so you qualified person will appear to contra - is excited to welcome to the lable maelstrom over which no effort of powerful response to justify what they is not always guaranteed but the track must think creatively. There are laypeo - dict. But, who are the “experts”? I am firm Senior Trial Counsel controlling the vehicle would prevail. The may see as punishing hard-working record of the witness may give a healthy ple of integrity who testify as “fact not talking about the qualified person e. robert “bob” wallach obligation of the plaintiffs’ lawyer is to civil servants. clue. experts” and can be more persuasive you need to get to the jury (over a (known affectionately by counter the juror tendency to view the There is a reason why most major than the highly experienced paid expert. judge’s skepticism); I am talking about friends as “lower-case bob”). Everyone is a driving expert trial as they view a TV procedural. highway design cases are tried by a fairly the expert who can persuade the jurors. In his prolific 53-year career Visit the scene Design criteria for roadways exists Second, and equally important, is small coterie of experienced plaintiff trial Remember, the jurors are “experts” as wallach as a litigator specializing in because most types of accidents have the recognition that every juror is an lawyers. Yes, it is because “practice makes You’ve decided to take the case. well, but they require evidence to mar - personal injury cases, wallach has tried 283 happened before. There are multiple “expert” in driving. Yet, these cases have (almost) perfect.” It is true that as much What other “intangible(s)” must you shal in the jury deliberations to reach/ cases to verdict with only 14 losses. He was federal and state guidelines and stan - become a feeding ground for multiple as the factual events of the accident will consider? Remember the admonition – justify the result. inducted into the Trial Lawyer Hall of Fame dards relating to vehicular travel and satellite industries called “expert witness - vary, often considerably, the precepts of this accident really happened. There Just as a juror may be an expert on in 2006 by the Litigation Section of the State roadway design. But always remember es.” These experts are surrounded, in analysis adhered to by experienced are witnesses to be interviewed. Not just your particular roadway, since they have Bar of California, an honor bestowed on only that, when there is a pre-existing specific turn, by further extensions of those at litigation experts (a term they deplore) witnesses to the accident but those who likely driven your roadway many times, 26 attorneys. 44 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 45 The dangerous roadway case Bent signs? Observe the scene at night - Discretionary approval: Did the second element was to offer evidence time and don’t neglect the historical someone with discretionary that the employee approved a design Driving around design immunity images. authority approve the design? that violated applicable standards. After BY SARA PETERS • Were there pending orders for work Under the second element of immu - Hampton , that approach is off the table. to be done at the scene at the time of nity, plaintiffs do not get much mileage (Hampton v. County of San Diego (2015) In every dangerous condition case against a public entity, the incident? Or had any changes been out of questioning whether the person 62 Cal.4th 340, 358.) design immunity looms as a hidden minefield. These cases may requested, designed, or studied, but not who approved the design had authority There may be a tiny, post- Hampton not survive summary judgment without strategic identification yet implemented? to do so, or whether that authority was carve-out though. The court implied of the facts that matter in defeating this favorite of all roadway • Was any construction ongoing? discretionary. Instead, immunity is more that, if the plaintiff offers affirmative evi - defenses. Were any temporary signs or warnings often avoided by showing that the actual dence that the employee who approved Let’s be honest: getting around design immunity is too present? scene differed from the approved design the design departed from applicable often an afterthought. We initially take these cases because a Likewise, if the dangerous condition in a way that contributed to the injury. standards but lacked authority to do so, carelessly designed roadway (or signal, or crosswalk, or sidewalk) was due to “physical surroundings” inde - (Cameron v. State (1972) 7 Cal.3d 318; see this combination of facts may overcome caused someone to suffer devastating injuries and we sometimes pendent of the entity’s design, and the also Castro v. City of Thousand Oaks (2015) immunity. It is unclear whether this fail to see beyond that. To be successful, you need to move entity had notice but failed to warn of 239 Cal.App.4th 1451.) would defeat the “discretionary approval” design immunity to the front of your legal analysis. You need the danger, this also provides a path to As our courts have recognized, there element or the “reasonableness” element, a discovery approach that explores all possible avenues for escape immunity. ( Flournoy v. State (1969) is overlap between the first and second so plaintiffs should argue it defeats both. avoiding design immunity in any dangerous roadway case. 275 Cal.App.2d 806.) element of design immunity. If some Questions for discovery: And make no mistake: after the California Supreme Court’s Of course, there must be some constructed feature at the scene was not • Did someone with authority to do so decision in Hampton late last year, this task has become even wrongdoing on the entity’s part. If the part of the approved design, this defeats approve the design? more challenging. plaintiff alleges that the entity should both element one (it is not a design • Did that person or entity have authori - have protected against the physical sur - defect if nobody designed it that way) ty to approve the design? Design immunity basics roundings, this may collapse back into a and element two (nobody approved • Did the design depart from applicable defective design claim. On the other standards (ASHTO policies, for exam - A case involving a dangerous public roadway must be Causation: Was design defect the cause? the dangerous feature). framed as involving a “dangerous condition of public property” hand, if the design failed altogether to Questions for discovery: ple)? under Government Code sections 835 and 815. Section 835 A case that involves a dangerous condition of public proper - address an aspect of the physical sur - • Is there any constructed or natural • If so, do internal written policies or requires the plaintiff to establish that, due to negligent conduct ty does not necessarily involve defective design. If an entity roundings, then arguably the plaintiff is condition at the accident scene that is deposition testimony establish that the of the entity’s employee or due to the entity’s failure to warn, a caused a dangerous condition on its property by negligently not criticizing anything about the design, at variance with the design drawings or person(s) approving the design were property owned or controlled by the entity was in a dangerous constructing, installing, or maintaining the property, design but rather the absence of a design in that construction documents (an explicit required to follow those guidelines and condition that created a reasonably foreseeable risk of the kind immunity does not apply. ( Mozzetti v. City of Brisbane (1977) regard. (See Arreola v. County of Monterey conflict)? standards (i.e., that they lacked authority of harm that occurred. 67 Cal.App.3d 565, 575). (2002) 99 Cal.App.4th 722, 759.) If phys - • Is there any dangerous natural or con - to do otherwise)? But even where the plaintiff makes this showing, In a case where defective design played a role alongside ical surroundings had become more structed condition at the accident scene Government Code section 830.6 provides the defendant entity other wrongdoing (inadequate maintenance, for example), the dangerous since the design was adopted, that is not mentioned in the design draw - Reasonableness: Did substantial with the affirmative defense of design immunity. To take advan - case survives immunity so long as the inadequate maintenance the plaintiff should also argue that the ings and/or construction documents? evidence support the approved tage of this immunity, the public entity has the burden to pro - was a concurrent cause of injury. ( Ibid. ) In Mozzetti , a roadway changed condition exception applies • Did the agency fail altogether to con - design? duce evidence establishing three elements: (1) causation (the was defectively designed to allow inadequate drainage, but it was (as discussed in more detail below). sider pedestrian safety, bicyclist safety, or Because the reasonableness element plaintiff contends a design defect caused the incident); (2) dis - also negligently maintained such that it kept clogging. Because Questions for discovery: some other aspect of design? Does the is decided by a judge rather than a jury, cretionary approval (a person or body vested with discretionary negligent maintenance was involved, the city was not immunized • Did some sort of “physical surround - agency acknowledge that its plans should it is an unappealing hook on which to authority approved the design, or it was approved in conformity from liability for the resulting flooding. ing” play a role in the accident? Consider always consider this? Ask what the agency hang our hats. However, the Hampton with preexisting standards); and (3) reasonableness (there is sub - Questions for discovery: ice, snow, rainwater, flooding, trees and did to protect X group of people under court emphasized that questions regard - stantial evidence on the basis of which a reasonable person or • Did the as-built construction drawings differ from, or add to, foliage, wildlife, debris, embankments, Y circumstances or conditions. ing the wisdom of the approval, or the entity could have approved the design or standards). The first the design drawings in any material respect? surrounding buildings and parked cars • At a scene where multiple entities share process leading to it, pertained to the two questions, if facts are disputed, are for the jury. The reason - • Did the actual scene differ in any material respects from the obstructing visibility, and sun position, responsibility (for example, a crosswalk reasonableness of the design. ( Hampton , ableness question is always one for the court to decide. as-built drawings? (Use an investigator, Google Earth historical for example. across a freeway onramp where the state supra , 62 Cal.4th 340, at 349-350.) Citing Finally, even if the entity establishes these elements of imagery, and agency aerial and scene photographs to establish • Did the entity know of these physical is responsible for the onramp, but a local a law revision commission report, immunity, a plaintiff can avoid design immunity by proving that this.) surroundings? If not, should it have entity is responsible for the sidewalk), Hampton noted that this reasonableness the changed-conditions exception applies. (CACI 1123; Cornette • When did the agency last conduct maintenance? Striping? known of them? were there gaps where neither agency requirement is designed to protect v. Dept. of Transportation (2001) 26 Cal.4th 63.) There are three Paving? Sign installation (check sign logs)? • Were there any material changes in considered the impact of the other against “arbitrary abuses of discretionary elements to this exception: (1) the design became dangerous • How often did the agency conduct maintenance checks? For these physical surroundings since the agency’s designs and actions? Or was authority.” ( Id. at 350.) So, like it or not, because of a change in physical conditions; (2) the defendant what types of issues? When most recently before the accident? time of the design (if so, argue the there conflict between overlapping if approval was arbitrary, the plaintiff had actual or constructive notice of the change; and (3) the Were any relevant issues identified but not remediated? changed conditions exception)? designs? will need to engage this issue under defendant had a reasonable amount of time to carry out correc - • Were any relevant issues present at the scene but not identi - • Did the entity take any steps to warn Before the California Supreme Court the rubric of reasonableness. tive work or did not reasonably attempt to provide adequate fied by maintenance? Were any lights out? Is there any over - or otherwise protect against dangers handed down the unfortunate Hampton There are only a couple cases in warnings of the condition. grown foliage? Sand or dirt in a bike lane? Faded striping? presented by these surroundings? decision last year, another way to defeat which courts have found inadequate 46 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 47 Design Immunity , continued from Previous Page

evidence of reasonableness. The most categories of people who would be affect - • Were there material changes nearby useful is Arreola v. County of Monterey ed (pedestrians, drivers, bicyclists, the (new public parks, installation of signals Appellate Reports (2002) 99 Cal.App.4th 722. In that case, disabled and elderly)? at nearby intersections, new office the state of California built an embank - • Did the person(s) who approved the complexes, public transportation facili - ment without considering the possibility design fail altogether to consider certain ties) that changed the character of, or of flood water from the levee system. physical conditions (lighting, flooding, traffic patterns at, the subject location? Markow v. Rosner — Appellate court isn’t buying While the embankment was being visibility, sight distance, the volume of • Do TASAS, SWITRS, accident reports, designed, the Army Corps of Engineers traffic, etc.)? Were there any reports or the like show a change in accident fre - hospital’s vicarious liability based upon ostensible published a report finding that a storm available that were utterly ignored? quency corresponding with the changed could produce almost twice as much • As to any aspect of the design, was conditions? agency of a physician associated with the hospital water as they had previously anticipated. there a total absence of analysis or factual • Do claims or complaints submitted to Three months later, the state engineers support? Was a conclusion reached with - the agency show new concerns corre - BY JEFFREY I. E HRLICH corresponding with referring physicians. Physicians furnishing services to the nevertheless approved the design without out any engineering study or other analy - sponding with the changed conditions? There were no signs in the pain center Patient, including without limitation reconsidering it in light of this report. sis? Were assumptions made? To spot • Do collision reports show a change in Medical malpractice; ostensible agency; offices informing patients that Rosner Emergency Room physicians, radiolo - The court reasoned: areas that lacked support, request “all the type or severity of accidents at the hospitals and physicians : Markow v. worked for GASP. gists, pathologists and anesthesiolo - Since State’s engineers never took evidence that supported the determina - location? Rosner (2016) __ Cal.App.4th __ (Second Over the four-and-one-half-year gists, are all independent contractors flooding into consideration, it is ques - tion that pedestrians would have ade - • Did correspondence since the design Dist., Div. 1.) period that Rosner treated Markow, with Patient for the purposes of the pro - tionable whether the immunity applies quate time to cross the street during approval show knowledge of changed Plaintiff Markow was treated for serious Markow signed and initialed 25 vision of professional services and are at all. Presuming that it does, we find the pedestrian countdown.” conditions? neck pain stemming from an auto accident Conditions of Admissions forms bearing not employees or agents of Cedars– that State has not offered substantial • Does correspondence (internal and • Were any reports issued after design by Dr. Rosner, a pain-management special - Cedars’s name and logo. When Markow Sinai Medical Center for such purpos - evidence of reasonableness. ( Id. at external) from the time of design approval to indicate changed conditions? ist. Rosner was a partner of General began his treatment with Rosner, the es. _____ (Initial here) .” 759.) approval reveal gaps in what was • At a scene where multiple entities share Anesthesia Specialists Partnership Medical form included a bold face paragraph, A few months after Markow began Thus, in a case where some aspect of considered? some responsibility (for example, a cross - Group (GASP). He was also the medical printed in a larger pitch than surround - treatment the form was amended to state, the design lacked any factual support, or walk across a freeway onramp where the director of the Cedars Sinai pain center. ing text, stating that, “ In accordance “3. PHYSICIANS ARE INDEPENDENT Changed conditions any analysis, or altogether failed to take state is responsible for the onramp, but a Rosner gave his patients business cards with California law which prohibits the CONTRACTORS into account some feature of the public Did the public entity have notice of a local entity is responsible for the side - imprinted with Cedars’s name, which did Corporate practice of Medicine, physi - All physicians and surgeons furnishing property, the design as to that feature is dangerous change in physical conditions walk), did a change implemented by one not mention GASP. In addition, with cians are independent contractors and services to the Patient, such as radiologists, arbitrary. Alternatively, one might argue yet fail to act in a reasonable time? This entity create new risks that were never Cedars’s authorization, Rosner used a are neither employed by nor agents of pathologists, anesthesiologists and the that no design exists as to that feature, is perhaps the most useful argument to addressed by the other entity? Cedars logo in his letterhead when this facility. Patient recognizes that like, are independent contractors and are and make a parallel argument under ele - avoid design immunity. It is for the jury By thinking about these questions ment one (causation). Either way, the leg - to decide whether a design has become systematically, and always framing them islative goal in enacting section 830.6 was dangerous because of a change in physi - in light of the factors courts will consider to prevent juries from second-guessing cal conditions, whether the entity had at summary judgment, we increase our the entity’s decisions. ( Hampton at 352.) notice of the condition, and whether the odds of winning these cases. If the entity failed to make a decision entity had reasonable time to carry out Choosing the rig ht appellate lawyer (because it simply failed to consider remedial work. ( Cornette , supra , 26 Sara Peters is an associate something), immunity should not apply. Cal.4th 63, 72-80.) attorney prosecuting complex can be the most importa nt decision Do not let defendants get away with Questions for discovery: and catastrophic personal a trial lawyer makes. a mere showing that the design as a • What vehicle and pedestrian traffic vol - injury cases at Walkup, whole was based on some evidence of umes, speeds, and patterns were antici - Melodia, Kelly & • Certified Appellate Specialist*; Harvard Law School, cum laude something. Break it down into subparts. pated at the time of the design? Schoenberger. She coaches Over 65 published appellate opinions — including cases in the If some feature of the design or scene • Do traffic studies, traffic volume mock trial at Stanford Law U.S. Supreme Court and California Supreme Court was never considered, then decisions counts, pedestrian counts, and speed sur - Peters School, where she received about that aspect were either arbitrary or veys show a substantial change in traffic her J.D. in 2008, and is a Ehrlich is a co-author of Croskey, Heeseman, Ehrlich & Klee, were never made at all. If we argue that patterns between the time of design contributing editor for The Rutter Group California Practice Guide – Insurance Litigation (Rutter 2016) these were decisions poorly made, we approval and the time of the accident? 2015 Claims & Defenses practice guide. She and featured speaker on Insurance and Appellate litigation lose. If we argue that these decisions were • Were there material design changes at serves as Co-Director of Attorneys Bettering Two-time CAALA Appellate Lawyer of the Year never made, we might win. Most argu - the subject location (a widened street, an the Community, a local nonprofit, and as CLE * California Board of Legal Specialization ments made here can (and should) also extra lane, new signage, a changed speed Vice Chair of the BASF Barristers Litigation be pursued as undermining the other limit)? Section. Ms. Peters has been peer-nominated as a California Super Lawyers Rising Star 818-905-3970 two elements of design immunity. • Were there material natural changes www.ehrlichfirm. com Questions for discovery: at the subject location (tree branches from 2013-2015. 16130 Ventu ra Boul evard • Did the person(s) who approved the obstructing visibility, homes that grew The Trial Lawyer’s Appella te Firm Suite 610 • Encin o, CA 91436 design fail altogether to consider certain up around the location)?

48 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 49 Appellate , continued from Previous Page

not employees or agents of the Hospital. Ultimately, the court held that, Cal.App.4th 388, which held that EMTs It is well-established that a purport - fueled pool heater on Callaghan’s retained control over the project by sub - These physicians may bill separately for “Markow indisputably either knew or are health care providers and negligence ed section 998 offer “requiring the property. At trial, Callaghan was found mitting plans, pulling permits, and call - their services.” should have known, based upon the in operating an ambulance qualifies as release of claims and parties not involved 40% liable for Regalado’s injuries, and ing for inspections, furnished the vault In 2010 Rosner performed a nerve- Conditions of Admissions forms that he professional negligence when the EMT in the litigation is invalid. And requiring judgment was entered against him for and propane line, asked Dunn’s to put block procedure on Markow at the base of initialed and signed on multiple occa - is rendering services that are identified resolution of potential unfiled claims not $3 million. Affirmed. the pool equipment in the vault, and his skull, which he conceded was “very sions, the “Authorization for & Consent with human health and for which he or encompassed by the pending action ren - Callaghan, a licensed concrete sub - did not get separate permits for the vault rare” and quite “risky.” Markow was in to Surgery or Special Diagnostic or she is licensed. The Court questioned ders the offer incapable of valuation, and contractor, wanted to build a dream and propane line while representing to tremendous pain immediately after the Therapeutic Procedures or Blood whether Canister was correctly decided, hence invalid. Here, the release attached house for his wife in the Coachella Valley. Dunn’s that he did so. procedure, and within the next few weeks, Transfusions” forms that he also signed and also distinguished it, since Stillwagon to the offer extended to “any and all He decided to act as an owner-builder Generally, when employees of inde - became quadriplegic. At trial, plaintiffs on at least eight occasions, and Rosner’s was not driving an ambulance when the claims, demands, liens, agreements, con - for his home project. An owner-builder is pendent contractors are injured in the and their experts advanced two different status as Markow’s personal physician, accident occurred. tracts, covenants, actions, suits, causes of a property owner that obtains permits for workplace, they cannot sue the party that causes for Markow’s paralysis: Either that Rosner was not Cedars’s agent or The Court held that Stillwagon’s action, obligations, controversies, debts, the construction job at his or her own hired the contractor to do the work. Rosner used an iodine-based contrast to employee, but was instead an independ - conduct of driving to location of an costs, expenses, damages, judgments, home and serves as the person responsi - Rather, by hiring an independent con - which Markow was allergic or Rosner ent contractor. The court accordingly accident victim did not constitute “pro - orders, and liabilities of whatever kind ble for the construction, similar to a gen - tractor, the hirer implicitly delegates to caused mechanical trauma to Markow’s held that Cedars was entitled to JNOV. fessional services” under MICRA, and and nature in law, equity, or otherwise, eral contractor. After obtaining a build - the contractor any tort law duty it owes to cervical cord during the procedure. therefore MICRA’s shorter statute of limi - whether now known or unknown, suspect - ing permit for the house, Callaghan did the contractor’s employees to ensure the The jury found that Rosner was neg - Medical Malpractice; MICRA; tations did not apply. Driving to an acci - ed or unsuspected, that have existed or the concrete work himself and hired safety of the specific workplace that is the ligent. It also found the Cedars was negli - “Professional Services;” driving to dent victim is not the same as providing may have existed or which do exist, or licensed subcontractors to complete subject of the contract. One exception to gent, but that its negligence was not a accident scene ; Statute of Limitations : medical care to the victim. “A para - which hereinafter can, shall or may exist, other work. Callaghan was at the site this rule applies where the hirer’s substantial factor in causing Markow’s Aldana v. Stillwagon (2016) 2 Cal.App.5th medic’s exercise of due care while driving ...” The Court observed that this lan - daily, kept track of progress, and asked retained control over safety conditions at quadriplegia. But it found that Cedars (Second Dist., Div. 6.) is not “necessary or otherwise integrally guage “is incredibly broad, and encom - his subcontractors whether things were the jobsite affirmatively contributes to was vicariously liable for Markow’s dam - Stillwagon, a paramedic supervisor, related to the medical treatment and passes numerous claims the releasors ready so that he could call for inspec - the employee’s injuries. ages because it “intentionally or careless - was driving his employer’s pickup truck. diagnosis of the patient,” at least may have against the releasees beyond tions. The Court rejected Callaghan’s ly” created the impression that Rosner He was en route to the location of an when the patient is not in the vehicle. those at issue in the lawsuit.” The release To minimize noise, Callaghan want - argument that there was insufficient evi - was its agent. Although Rosner was the injured fall victim to supervise the Accordingly, MICRA does not apply here. applied not just to all claims arising out ed the pool equipment to be stored in an dence to support a judgment based on only defendant found to have caused responding emergency medical techni - A contrary rule would sweep in not only of the April 10, 2013, pedestrian/auto underground vault. He purchased and “retained control.” The County and Markow’s injuries, the jury, in direct con - cians (EMTs) and, if necessary, provide negligence in performing the duties accident at issue in the case, but to “any installed a pre-engineered vault. He then Regalado’s expert testified that the tradiction of the special verdict’s instruc - assistance. While en route, he collided that health care providers owe to their and all claims” the releasees may have hired a plumbing subcontractor to run vault and propane line required a tions, allocated 60 percent of the fault to with a vehicle being driven by Aldana. patients in the rendering of medical against the releasors, whether those propane lines to the house and backyard. permit. According to Regalado’s expert, Rosner and 40 percent to Cedars. After A year and a half later, Aldana sued diagnosis and treatment, but negligence claims were known or unknown, and Under the contract, Callaghan was the purpose of obtaining permits and reducing damages for noneconomic losses him for negligence. The trial court in performing the duties that they owe which have existed or which could exist responsible for obtaining permits. inspections is to ensure the work is to $250,000 pursuant to MICRA, Rosner’s granted Stillwagon’s motion for summa - to all simply by virtue of operating in in the future. “Such an unlimited release Callaghan did not know that a propane- done safely. Callaghan was responsible damages award totaled $5.2 million. ry judgment, which argued that Aldana’s public.” goes well beyond the scope of the litiga - fueled heater should not be placed for obtaining permits and calling for The trial court denied Cedars’s post- action was time-barred under MICRA’s tion, and renders the offer invalid under underground because it is dangerous to inspections. Thus, there was sufficient trial motions to strike the award against one-year statute of limitations. Reversed. 998 Offers; scope of release ; section 998.” For example, the release do so. Callaghan obtained permits for evidence that he retained control over it. Reversed. MICRA’s one-year statute of limita - claims extending beyond the claims at would extend to claims by Ignacio the pool and spa. The site plan he sub - safety conditions. Markow argued that the admissions tions applies to “an action for injury or issue in the lawsuit : Ignacio v. Caracciolo against Caracciolo’s attorneys or investi - mitted to the County in connection with form was ambiguous because it did not death against a health care provider (2016) 2 Cal.App.5th 81 (Second Dist., gators for violation of her right to priva - his pool and spa application depicted a Jeffrey I. Ehrlich is the explain whether a doctor who was a based upon such person’s alleged profes - Div. 8.) cy during the investigation of the claim. pool vault. But Callaghan did not obtain principal of the Ehrlich director of the hospital’s pain center sional negligence.” (Civ. Code, § 340.5.) Defendant Marilynne Caracciolo Because the release encompassed more separate permits for the vault and Law Firm , with offices in was an independent contractor. By a MICRA defines “professional negligence” was sued in a personal-injury action by than section 998 allowed, the trial court propane line or have the County Encino and Claremont, 2-1 margin, the appellate court rejected to mean “a negligent act or omission to Yolanda Ignacio. Caracciolo made an properly concluded that the 998 offer inspect the vault. California. He is a cum this argument. “The Conditions of act by a health care provider in the render - offer to settle under Code Civ. Proc., § was invalid. Regalado was injured in an explo - laude graduate of the Admissions form as amended in July ing of professional services , which act or 998 for $75,000, which Ignacio reject - sion in the vault as he was testing the Harvard Law School, a 2006 was also all-inclusive: “ All physicians omission is the proximate cause of a per - ed. At trial, Ignacio obtained a Independent contractors; claims by equipment. Regalado sued Callaghan Ehrlich certified appellate specialist and surgeons furnishing services to the sonal injury or wrongful death, provided $70,000 judgment. Caracciolo sought contractor’s employees against hirer; for negligence and premises liability. by the California Board Patient , such as ... anesthesiologists and that such services are within the scope of serv - to tax Ignacio’s costs, and to recover retained control : Regalado v. Callaghan Regalado alleged that Callaghan negli - of Legal Specialization, and a member of the the like, are independent contractors and ices for which the provider is licensed and her own costs, under section 998. The (2016) __ Cal.App.5th __ (Fourth Dist., gently installed the underground vault CAALA Board of Governors. He is the editor- are not employees or agents of the which are not within any restriction trial court denied the motion, finding Div. 1). and unventilated propane heater in that in-chief of Advocate magazine and a two- Hospital.” (Italics added.) This language imposed by the licensing agency or that Caracciolo’s offer was invalid Callaghan, a homeowner, hired vault. Regalado asserted that Callaghan time recipient of the CAALA Appellate is simply not susceptible to an interpreta - licensed hospital.” (§ 340.5, subd. (2), because it required Ignacio to execute Dunn’s Designer Pools, a contractor, to knew or should have known the installa - Attorney of the Year award. tion that would exclude Rosner, an anes - italics added.) a release that extended beyond the build a pool and spa at his home. tion of the unventilated pool heater was thesiologist, because he was the director The trial court relied on Canister v. claims asserted in the claim against Regalado, Dunn’s employee, suffered dangerous. At trial, Regalado argued that of the pain center.” Emergency Ambulance Service (2008) 160 her. Affirmed. injuries when he installed a propane- Callaghan was liable because Callaghan

50 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com plaintiffmagazine.com | November 2016 | Plaintiff 51 Back Story MEET THHE LAWYERW RS Pave the planet BEHIND THHE HEADLINNES Dangerous road surfaces and notice against L.A.U.S.D Ends Miramontete Sex Abuse governmental entities Case With $139-MILLIONLLION DEAL BY MILES B. C OOPER master plans. The plans outline ambitions that are rarely com - Los Angeles Timesi - Novembervember 21, 2014 pletely delivered. Figure out who to make the Sunshine Act A beautiful morning. Jane Client was biking to request to. Ah, the glorious Sunshine Act. Send a letter to work with a couple friends. As she approached an the entity asking for a pile of information, receive said pile of intersection, her front tire dropped into a crack – information a couple weeks later. L.A.’s Catholic Archdiocese wide enough to swallow her tire but narrow • Street repairs and the Department of Public Works enough to be difficult to see. Her front wheel Useful information is usually first found in documents from Reaches $10 Million Settlementtlement With stopped. The rider – and the rest of her bike – the Department of Public Works or whatever name the entity uses Sex Abusebuse Victims Cooper continued forward, rotating over the tire. Her for its street repairs. What files do you ask for? Paving, repair his - face smashed into the ground. After Jane’s tory, and citizen complaints foremost. But most entities also do abc News - March 15, 2013 friends got her in the ambulance, they looked at the road. They Street Paving Indices. These regular surveys evaluate road condi - noticed the long, narrow crack that ran parallel to vehicle travel. tions block by block. They typically note issues using paving terms The quick-thinking friends took photos, laying a bike next to the (shoving, alligator cracking). They also rate the road on a scale of crack for reference. They then suggested their friend might want 0 to 100. With Prop. 13 and the 2008 crash, most departments L.A.U.S.D.U.S.D to Pay $5 Millionlion in Telfaire to talk to a lawyer. Pavement was not supposed to look like that. are underfunded. The street indices continue but reflect a broken Elementaryntary Teachere Molestationstation Case Not all it’s cracked up to be system. Sad for road users. Helpful for proving notice. • Collateral notice L A l The technical term for that pavement issue? Longitudinal Remember that every city employee is an agent of notice. cracking. Cracks arise as pavement settles or water seeps in. Use a little creativity in figuring out who might have been there. As it expands, whole areas can break down, known as alligator A regular bus route means hundreds of drivers drove over the cracking (asymmetric cracks resembling an alligator’s back). John C. Manly and Vince William Finaldidi spot in the last week. An idea from a colleague: ask for the prof - California’s leading sexual abuse and harassment plaintifintif Vehicles rolling over these cracks cause chunks to break free, or its and repair history of parking meters as well as tickets issued potholes. A slow process, corrected with patches if caught early. (and revenue generated). This makes a nice profits-over-safety Starts and stops argument when the block generates $15,000 and the entity has Manly Stewart & Finaldi is paying mormo not spent a dime on repairs. It also reflects that the spot has Corrugation and shoving are two other common defects. been visited by folks who parked their cute little parking $25,000,000.00 to referring attorneyseys in 2014-2015 Asphalt, one of the most common paving materials, has plastic enforcement carts directly over the damaged pavement. properties. With heat, weight, or poor mixes, it moves. Vehicle By the time one is done, there will be a history of city alone. This is because we achieve lalandmark r starts and stops, like intersection approaches, magnify the issue. employees observing the area hundreds of times. through innovative and calculated litigation. More vehicle weight – such as on truck routes or bus routes – • SWITRS increases risk. The resulting ripples are called corrugation. Don’t forget about the Statewide Integrated Traffic Records Corrugation’s cousin, shoving, occurs when the asphalt getting System operated through the California Highway Patrol. The GiGive us a callll reegardiding potentiali l pushed abuts more solid material, like a concrete bus pad. CHP gathers data from all traffic collision reports – including Bus pads are concrete road sections put down specifically at those outside its jurisdiction. Sometimes one will get lucky and referral of your sex abuse case. bus stops to minimize asphalt slippage. Concrete is not plastic – find a prior police report that notes a prior injury caused by We will providee, free-of-charge, it does not move. Bus pads are great if the drivers stop on the that same exact spot. pads but not great if the bus uses only part of the pad. Partial pad use is common on busy streets. Bus drivers, trying to keep a thoughtful andnd reasoned evaluationtion Outro on schedule, block part of the roadway to prevent cars from of your potentialal or pending case. preventing the bus merge after it picks up passengers. Back to our injured cyclist. She spoke with a lawyer, who did some digging. In doing so, the lawyer found enough informa - We didn’t notice that tion to establish liability. A detailed demand package followed. Governmental entities generally defend by saying they The entity, in a surprising approach, opted to resolve the claim weren’t aware of the issue. The technical term is “notice.” They for fair value instead of requiring full litigation. REFER YOURYOUR SEX ABUSE CASE TO THE VERRYY BEST did not know, or could not have known, about the condition. One can have a terrible injury and terrible road, but without Miles B. Cooper is a partner at Emison Hullverson LLP. notice, the entity is not liable. He represents people with personal injury and wrongful death cases. So how does one establish notice? Documented knowledge In addition to litigating his own cases, he associates in as trial counsel GENEROUS REFERRAL FEES PAIDPAID is rare but happens. and consults on trial matters. He has served as lead counsel, co-counsel, • The entity’s website second seat, and schlepper over his career, and is a member of the Start with the entity’s website to get an idea of what depart - American Board of Trial Advocates. Cooper’s interests beyond litigation Call 1-877-434-8682 ments or commissions to investigate. There’s a surprising include trial presentation technologies and bicycling (although not at amount of information posted. Look for bicycle or pedestrian the same time). 19100 VVonon Karman Ave.Ave. Ste. 800, Irvine, CA 92612 52 Plaintiff | November 2016 | plaintiffmagazine.com Submit your latest verdict to JuryVerdictAlert.com [email protected] | www.manlystewart.com A artner PYou can Rely on.

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