www.sfvba.org JUNE 2021 •JUNE $5 How ItWorks Council: WhatItIs, California Judicial A PublicationoftheSanFernando Valley Bar Association COVID-19 Vaccines in theWorkplace: Mandate orNot www.ketkcpa.com

2 Valley Lawyer ■ JUNE 2021 www.sfvba.org www.sfvba.org JUNE 2021 ■ Valley Lawyer 3 www.arxisfi nancial.com

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4 Valley Lawyer ■ JUNE 2021 www.sfvba.org CONTENTS JUNE 2021 VALLEY AWYER A Publication of the San Fernando Valley Bar Association

12 20

26 32

FEATURES DEPARTMENTS 12 COVID-19 Vaccines in the Workplace: 7 President’s Message Mandate or Not | BY KARINE KARADJIAN MCLE TEST NO. 152 ON PAGE 19. 9 Editor’s Desk

10 Event Calendar 20 California Judicial Council:

What It Is, How It Works | BY MICHAEL D. WHITE 11 SFVBA Nomination Committee

31 Bar Notes 26 The “Fatty” Arbuckle Case:

Hollywood’s First Celebrity Trial | BY MARK J. PHILLIPS AND 37 Retrospective

ARYN Z. PHILLIPS 41 Executive Director’s Desk and Attorney Referral Service 32 A Survival Tool: Supplemental Cyber Security Insurance | BY DAVID MERCY 43 Valley Community Legal Foundation

36 UWLA Hosts Moot Court 45 Neighborhood Legal Services of Competition Via Zoom | BY MICHAEL D. WHITE Los Angeles County

38 Flat Fees: Follow the Rules, No Problem | BY ERIN JOYCE 46 Classifieds www.sfvba.org JUNE 2021 ■ Valley Lawyer 5 SAN FERNANDO VALLEY BAR ASSOCIATION 20750 Ventura Boulevard, Suite 140 Woodland Hills, CA 91364 Phone (818) 227-0490 Fax (818) 227-0499 Visit for www.sfvba.org www.sfvba.org EDITOR the Valley Lawyer Media Kit Michael D. White GRAPHIC DESIGNER Marina Senderov

OFFICERS

President David G. Jones President-Elect Christopher P. Warne Secretary Matthew A. Breddan Treasurer Heather Glick-Atalla Immediate Past President Barry P. Goldberg Executive Director Rosie Soto Cohen

BOARD OF TRUSTEES

Yuri Aberfeld Minyong Lee Michael L. Cohen Joy Kraft Miles Alan Eisner Amanda M. Moghaddam Kyle M. Ellis Jessica Rosen Gary J. Goodstein George N. Seide Alex J. Hemmelgarn Steven M. Sepassi Erin Joyce Benjamin E. Soffer Alexander S. Kasendorf Taylor F. Williams-Moniz Contact (818) 227-0494 to place your ad. STAFF

Director of Education & Events Linda Temkin Communications Manager Michael D. White Associate Director of Jack G. Cohen Public Services Miguel Villatoro Member and Client Services COURT QUALIFIED EXPERT WITNESS Coordinator and Fee Arbitration Administrator Meydell Castro OVER 40 YEARS OF EXPERIENCE IN PRIVATE MONEY LENDING & SECTION CHAIRS – CO-CHAIRS REAL ESTATE RELATED CASES Bankruptcy Law Steven R. Fox Business Law & Real Property Lauri Shahar Plaintiff and Defense Criminal Law Alan Eisner Employment Law David G. Jones Trevor Witt OFFICE: 747.222.1550 « CELL: 747.222.1554 Family Law Vanessa Soto Nellis Gary J. Weyman EMAIL: [email protected] Litigation Christopher P. Warne 2629 Townsgate Road, Suite 100 « Westlake Village, CA 91361 Anthony Ellis New Lawyers Alex J. Hemmelgarn Amanda Marie PRIVATE MONEY LENDING Moghaddam CREDIT FILE AND QUALIFICATIONS Probate & Estate Planning John E. Rogers Nancy A. Reinhardt APPRAISALS • EVICTIONS • FORECLOSURES Taxation Law Hratch J. Karakachian INDUSTRY STANDARDS • TITLE REPORTS Workers’ Compensation Jeffrey S. Swartz PROPERTY MANAGEMENT EDITORIAL COMMITTEE CHAIR TENANT AND LANDLORD ISSUES David Gurnick BROKERS AND INVESTORS RELATIONS Valley Lawyer is published monthly. Articles, announcements, and advertisements are due by the first day of the month FINANCE AND DOCUMENTATION prior to the publication date. The articles in Valley Lawyer are written for general interest and are not meant to be SALES & LEASING • INSURANCE CLAIMS relied upon as a substitute for independent research and independent verification of accuracy. LOAN SERVICING • ESCROW © 2021 San Fernando Valley Bar Association

6 Valley Lawyer ■ JUNE 2021 www.sfvba.org PRESIDENT’S MESSAGE

DAVID G. JONES STATE AND FEDERAL That Exciting SFVBA President CRIMINAL DEFENSE Firm Partners: Time of Year Bar-Certified Criminal Law Specialists UCLA and Pepperdine Law Professor [email protected] Former Senior Deputy District Attorney

S WE APPROACH THE CORE profi le’ that immediately increases summer months of the calendar, their profi le and visibility in the Valley the time has once again here to legal community. scope out new talent to run in our The Bar also goes to great annual San Fernando Valley Bar lengths to promote Board candidates Association’s Board of Trustee election. online and on social media, so the I really enjoy this time of year opportunity to become more well when people step forward to become known amongst your peers is right in candidates for the Board. If elected, front of you. each of them will help shape the future Candidates and Trustees also of our Valley’s legal community. have the opportunity to make valuable RECENT VICTORIES: With as busy and stressful as connections with many of the most $3 Million Fraud Case: Dismissed, lawyer’s lives are, it takes a special infl uential and talented lawyers in our Government Misconduct (Downtown, LA) person to step forward to run for community. Murder: Not Guilty by Reason of Insanity, Jury (Van Nuys) election and volunteer their time to our While there exists a debate Medical Fraud Case: Dismissed, Preliminary nearly 100-year-old Bar. among younger lawyers about the Hearing (Ventura) Those who offer to become involved viability and utility of groups such Domestic Violence: Not Guilty, Jury Finding of Factual Innocence (San Fernando) are typically selfl ess folk who want as the SFVBA, they know and $50 Million Mortgage Fraud: Dismissed, to make a difference and advance understand that their connections to Trial Court (Downtown, LA) noteworthy goals for the Bar and their the community and fellow lawyers are DUI Case, Client Probation: Dismissed fellow attorneys. critical in their future success. Search and Seizure (Long Beach) Numerous Sex Offense Accusations: As Thomas Jefferson once said, It is really not a close call to Dismissed before Court (LA County) “We do not have government by the join and participate in the Bar. Any Several Multi-Kilo Drug Cases: Dismissed majority. We have government by the person who has ever advocated for due to Violation of Rights (LA County) majority who participate.” something they believe in can grasp Misdemeanor Vehicular Manslaughter, multiple fatality: Not Guilty Verdict So, in the spirit of one of our most how meaningful such involvement (San Fernando) laudable Founding Fathers, I am calling can be. Federal RICO prosecution: Not Guilty verdict on RICO and drug conspiracy on lawyers to consider running for The time commitment is limited, charges (Downtown, LA) election to the SFVBA Board of Trustees. and, at some level, each trustee, given Murder case appeal: Conviction reversed Becoming involved may be easier their constraints, contributes what based on ineffective assistance of trial counsel (Downtown, LA) in the more familiar setting of our legal they can. High-profile defense: Charges dropped community. While many of our members Bar elections are really a against celebrity accused of threatening government officials are a part of the growing number of springtime for our organization. They lawyers involved in a variety of charitable represent a renewal of our leadership causes and organizations, their and the changing of the guard, and I involvement in helping shape one’s own am genuinely excited for the folks who professional community is unique and, plan to run in our upcoming elections. Eisner Gorin LLP perhaps, more comfortable. Our Board of Trustees consists For others, the benefi ts of service of some of the most talented, 877-781-1570 are highly benefi cial for their careers. successful, and engaged lawyers in Immediate Response Every candidate has the opportunity to Southern California. You should be www.EgAttorneys.com be featured in a Valley Lawyer ‘candidate next. Offices in Van Nuys and Century City www.sfvba.org JUNE 2021 ■ Valley Lawyer 7 COVERAGE THAT PROMISES TO PROTECT. BUILT WITH YOU IN MIND.

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8 Valley Lawyer ■ JUNE 2021 www.sfvba.org EDITOR’S DESK

MICHAEL D. WHITE SFVBA Communications A Foundation to Build On Manager

[email protected]

T IS PRETTY MUCH A GIVEN She was named a Municipal Court manage a successful 35-acres citrus that anything–a building, a country, judge in August 1931 and, among other ranch in Valley. a company, an individual–built on a activities, served as a Director of the She died in November 1943 and solid foundation will last and persevere. Bank of Italy (now the Bank of America) rests at the Forest Lawn Memorial Park The same holds true for an in San Fernando, and as member of the in Glendale. association of like-minded people that, Successfully lobbying for a though members may come and go and courthouse in the Valley was one of demographics morph over time, remains the initial steps taken by Faulconer and committed to its founding charter and her fellow Bar visionaries in helping consistently serves its members and its establish a physical presence of justice community with energy and vision. in the Valley that could meet the legal When the San Fernando Valley Bar needs of its growing and increasingly Association was founded in 1926, the diverse population. 200-square mile Valley was home to Over the years, through war, civil only about 55,000 people. unrest, depression, economic boom Typically subdivided for small farms, times, and, yes, even disco, the Bar most of its residents had been lured Oda Hunt Faulconer has fl ourished in size and infl uence to there over the preceding decades by its present position as one of the most promises of cheap land, and engaged in State Bar Association; the American highly regarded Bar associations in the agriculture, grew everything from lettuce Bar Association; the Business and state. and oranges to wheat and olives. Professional Woman’s Club; the It has fl ourished, then and But, as the Valley began to boom, Republican County Central Committee; now, on a foundation laid by of access to legal services continued to be and the Executive Committee of Oda Hunt Faulconer, her far-seeing a matter of hit-and-miss with about 30 Republican State Central Committee. contemporaries, and their successors attorneys handling court cases, most of Living in a home she had built on that serve as the Bar’s offi cers, trustees, which had to be adjudicated at the Hall Mission Blvd. in San Fernando, Faulconer committee chairs and members, section of Justice, 29 miles distant in downtown somehow found the time to own and heads, and President’s Circle leaders. Los Angeles. With six offi cers–including Oda Hunt Faulconer, a USC Law School Robert Graf grad and Bar First Vice President–at DRE# 01469117 the helm, the Bar successfully lobbied Will provide all vendors necessary for the construction of a courthouse in to prepare any property for sale. the Valley to house a branch of the Los Angeles Municipal Court. Attorney references provided upon request. Born in 1884 in Springfi eld, Illinois, Serving greater Los Angeles, Ventura, Faulconer passed the Bar exam in and Orange County areas. 1913. She set up a private practice in Los Angeles and, six years later, was admitted to practice in all state and O: 818.368.6265 | M: 818.399.9455 | E: [email protected] Federal Courts of California and the U.S. www.RobertGraf.com | 11141 Tampa Ave., Porter Ranch, CA 91326 Supreme Court of United States. www.sfvba.org JUNE 2021 ■ Valley Lawyer 9 CALENDAR JUNE 2021

SUN MON TUE WED THU FRI SAT

ZOOM MEETING Membership and Marketing SFVBA COVID-19 UPDATES Committee sfvba.org/covid-19-corona-virus-updates/ 6:00 PM

WEBINAR Probate and Estate Planning Section Behind the Scenes: A Conversation with Former LASC Probate ZOOM Attorney Patricia Doyle MEETING 12:00 NOON 5:30 PM Attorneys Sarah Broomer and Patricia Doyle address the group and ZOOM give us an inside look into MEETING the Probate Court. Inclusion and (1 MCLE Hour) Diversity WEBINAR Committee Bankruptcy Meeting Law Section ZOOM 12:15 PM with the Jackson MEETING County (Oregon) Board of Trustees Bar Association 6:00 PM and the Central District Consumer Bankruptcy Attorney Association Sub-Chapter V Cases One Year In: A Look at the Practical Problems and How to Solve Them! 12:00 NOON WEBINAR A panel of attorneys Family from around the ZOOM Law Section country look at Sub- MEETING Meet the Judges Chapter V cases in Mock Trial 12:15 PM their districts, what Committee Judge Robert works, unique issues, 6:00 PM Sanchez DuFour, best practices and Judge Gary their judge’s take Roberts, Judge on these cases. Lee Arian and Approved for Commissioner Bankruptcy Law Amir Aharonov Legal Specialization. headline the (1.5 MCLE Hours) panel and discuss WEBINAR joining the Family SFVBA, MCBA Law Bench and and SCV Bar what family law Present attorneys can Stretch Your Body expect in the and Relax Your coming months. Mind! (1 MCLE Hour) 4:30 PM - 5:30 PM Virtual Yoga Workshop with SFVBA Board Members Alan Eisner and Taylor Williams- Moniz.

The San Fernando Valley Bar Association is a State Bar of California MCLE approved provider. Visit www.sfvba.org for seminar pricing and to register online, or contact Linda Temkin at (818) 227-0495 or [email protected]. Pricing discounted for active SFVBA members and early registration.

10 Valley Lawyer ■ JUNE 2021 www.sfvba.org SFVBA NOMINATION COMMITTEE

CHRISTOPHER P. WARNE Opportunities SFVBA President-Elect Abound

[email protected]

UNE TRADITIONALLY MARKS Tuesday, June 8, 2021, 5:00 P.M. the start of planning for the next (PST). SFVBA Board year. Now is the time for members to become involved as a Committee and Section Leaders Trustee, Committee Member or Leader, In addition to Board seats, positions or Section Chair. such as Committee and Section Every year, the SFVBA forms a formal Chairs are also annually appointed Nomination Committee comprised of every fall. These appointments are Trustees and active Bar members to select made by the SFVBA President and a slate of members desiring to be the approved by the new Board. next generation of Trustees and Executive The SFVBA has numerous Committee members. committees such as the Inclusion The Nomination Committee is chaired and Diversity Committee, Bench Bar by the current Past President. This year, Committee, Programs Committee, more than half of the and Membership and Board’s seats are open Marketing Committee. for election. Each committee has an appointed Chair Board of Trustee and active members. Candidates The SFVBA needs All attorney members your help, involvement, of the SFVBA who have and input. Whatever been on the active your interests, the roster for one year are eligible to apply SFVBA has a place for for a nomination to become Trustees. you to become involved. The applications are reviewed by Please contact the Bar staff for the Nominating Committee. Selected a full list of committees, both current candidates will stand for election later and upcoming, for areas to get this summer. We strongly encourage all involved. members to apply and help shape the Section chairs help organize the future of our organization. amazing monthly MCLE programing Non-attorney Associate SFVBA and networking events. www.112ways.com or members are also encouraged to apply Every substantive practice area www.stevemehta.com for the position of appointed Associate has an appointed section chair, Trustee. who would welcome not only input The Trustee application and details on content, but presentations by of the position’s expected duties and fellow members. Please contact the responsibilities can be downloaded at section chair of your respective legal https://sfvba.org/nominees-sought-for-sfvba-board/ practice area or the Bar staff for more Applications must be sent to the information. attention of SFVBA Executive Director Opportunities abound for all Rosie Soto Cohen at [email protected] by SFVBA members. Please join us. www.sfvba.org JUNE 2021 ■ Valley Lawyer 11 By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for the credit, please follow the instructions on the test answer form on page 19.

By Karine Karadjian

COVID-19 Vaccines in the Workplace: MMandateandate oorr NNotot

As COVID-19 vaccines are becoming more widely available in California, questions are being posed by both employees and employers on whether employers can legally mandate the COVID-19 vaccine for their employees as a condition to remain employed.

12 Valley Lawyer ■ JUNE 2021 www.sfvba.org Mandate or Not

www.sfvba.org JUNE 2021 ■ Valley Lawyer 13 S COVID-19 VACCINES ARE BECOMING MORE The reasonable accommodation cannot, however, be widely available in California, questions are being unduly burdensome to the employer. Religious exemptions posed by both employees and employers on whether are discussed in the context of Title VII, which may require employers can legally mandate the COVID-19 vaccine for an employer to accommodate an employee’s sincerely-held their employees as a condition to remain employed. religious beliefs or practices. There is no hard-line rule as of the time this article was Per EEOC guidance, the administration of a U.S. Food written, but there is some guidance provided by the U.S. and Drug Administration (FDA) approved or authorized Equal Employment Opportunity Commission (EEOC) and COVID-19 vaccine by an employer–or third party with whom the California Department of Fair Employment and Housing employer contracts to administer a vaccine–to an employee (DFEH), which answers certain commonly asked questions. is not considered a medical examination for purposes of the In December 2020, the EEOC issued guidance on ADA. COVID-19 vaccination mandates by employers as they relate However, if the employer administers the vaccine, to the Americans with Disabilities Act (ADA) of 1990 and Title it must take careful measures and ensure that the pre- VII of the Civil Rights Act. screening questions it asks employees are job-related and In March 2021, the DFEH issued guidance on the same consistent with business necessity, and do not elicit sensitive topic, replacing the two previous guidance documents it information about a disability. published in March 2020 and July 2020. If the vaccine is administered by a third party, a request by the employer for proof of vaccination is allowed and is EEOC Guidance not viewed as a disability related inquiry under the EEOC EEOC’s guidance discusses the applicability of federal guidelines so long as the employer does not question why an anti-discrimination laws, mainly the ADA and Title VII, and employee has not received one. how said anti-discrimination laws need to be taken into Questions may be framed in a certain way if they are consideration if an employer chooses to mandate employees job-related and consistent with business necessity and to receive the COVID-19 vaccine in order to remain proof of vaccination should be maintained in a separate employed.1 confi dential fi le. Per the EEOC, nothing in either the ADA or Title Per EEOC guidance, requiring employees to get the VII prevents employers from requiring employees to be vaccine–whether the vaccine uses mRNA technology or immunized with the COVID-19 vaccine and provide proof of not–does not violate Title II of the Genetic Information such as a condition for employment. Nondiscrimination Act. Under current EEOC guidelines, employers can enforce If an employer elects to mandate COVID-19 vaccinations mandatory vaccines as long as there are certain limitations, and requests proof of vaccination from its workers, the such as exemptions for medical and religious reasons. employer can take disciplinary action against an employee The employer will argue that it has a duty to keep its who fails to provide proof of the vaccine for reasons other workplace free from recognized hazards under the general than a disability or sincerely-held religious belief. duty clause of the Occupational Safety and Health Act The EEOC’s guidance seems to suggest that an of 1970 (OSHA), which states that “each employer shall employer can establish a mandatory vaccine policy if the furnish to each of his employees employment and a place of need for it is job-related or if remaining unvaccinated would employment which are free from recognized hazards that are pose a direct threat to other employees, customers, or causing or are likely to cause death or serious physical harm themselves. to his employees.”2 What is the standard for determining whether an Medical exemptions to the vaccine are discussed as unvaccinated employee would pose a direct threat to they relate to the ADA, which requires that reasonable others? accommodations be granted to an employee and prohibits The EEOC guidance turns to an individualized discrimination on the basis of a disability or medical assessment of the following four factors: the duration of the condition.3 risk; the nature and the severity of the potential harm; the likelihood that the harm will occur; and, the imminence of the harm itself.

Karine Karadjian is an attorney, mediator, and mediation consultant focusing on plaintiff employment law, bankruptcy, and debt relief matters. She has offi ces in Los Angeles and Orange County and can be reached at karine@kelawfi rm.com.

14 Valley Lawyer ■ JUNE 2021 www.sfvba.org POWERING PAYMENTS FOR THE

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ACCEPT MORE PAYMENTS WITH LAWPAY 866-751-8288 | lawpay.com/sfvba The application of these factors is highly fact-specifi c. Title VII There is no blanket formula and employers are under a duty Title VII of the Civil Rights Act prohibits discrimination by to apply the above test on a case-by-case basis. covered employers on the basis of race, color, religion, Additionally, if the employer comes to the conclusion sex, or national origin.4 that a direct threat exists using the above factors, it Its protection of religious beliefs comes into play in also needs to establish defi nitively that an unvaccinated considerations mandating vaccines as the employer must individual will expose others to the virus at the worksite. provide a reasonable accommodation under Title VII, If an employer determines that an individual who cannot unless it would cause undue hardship to the employer. be vaccinated due to disability posts a direct threat at the EEOC guidance stresses that because the defi nition worksite, the employer cannot exclude the employee from of religion is broad and protects beliefs/practices/ the workplace unless there is no other way to provide a observances with which the employer might not be reasonable accommodation. familiar, the employer should generally assume that the If a direct threat cannot be reduced to an acceptable employee’s request for religious accommodation is based level, the employer can prevent the employee from on a sincerely-held religious belief. physically entering the workplace. If an employer has an objective basis for questioning This does not mean, however, that the employer can either the religious belief/practice/observance, the automatically terminate the employee. There will need to be employer may request additional supporting information. a determination and analysis on whether other federal, state or local-level rights apply, and whether an accommodation DFEH Guidance can be made for the employer to work remotely. The California DFEH issued an updated COVID-19 Similar guidelines come into place when an employee guidance in March 2021. requests an accommodation and puts the employer on The updated guidance addresses whether employers notice that a sincerely-held religious belief, practice, or in the state can require that their employees be vaccinated, observance prevents receiving the vaccination. and how to comply with the Fair Employment and Housing Act (FEHA) if the employer chooses to implement a mandatory vaccine plan. For employers with fi ve (5) or more workers, the FEHA prohibits employment discrimination and harassment on the basis of certain protected characteristics and also prohibits any retaliation when an employee is engaged in a protected activity.5 Essentially, the DFEH guidance suggests that employers may require the vaccine as a condition for Banking for Fiduciaries and Attorneys employment as long as there is no violation of FEHA

Dedicated Expert Bankers, assigned to your accounts, resulting from this requirement. The FEHA provides will work with you and your clients to: protections to employees and prevents employers from discriminating against employees based on certain • Simplify account opening procedures • Make accommodations for out-of-state signers protected characteristics. • Open accounts with court order requirements Those certain protected characteristics for the • Secure accounts with expanded FDIC Insurance* purposes of COVID-19 vaccine requirements include • Provide Online Banking, ATM/Debit card, Duplicate disability and religion. Thus, if an employer implements Statements, Wire/ACH Services, Remote Deposit** mandatory vaccines, its mandatory vaccine policy must ensure that there is no discrimination against employees 6 Alice Madrid Neumann Ronna Lubash based on disability and religion. Vice President Vice President 818-568-6999 213-910-5455 Similar to EEOC guidance, DFEH guidance stresses [email protected] [email protected] a requirement to reasonably accommodate employees Alvin Burrell Vice President seeking an exemption from the vaccine based on a 213-588-4518 [email protected] disability or sincerely-held religious belief or practice. If an employee seeks a medical or religious exemption, * Placement of customer funds through the ICS service is subject to terms, conditions and disclosures set forth in the agreements that a participating institution’s customer enters into with the institution, including the ICS Deposit Placement Agreement. Limits and customer eligibility criteria apply. Program withdrawals are limited to six per month when using the ICS savings option. ICS, Insured Cash Sweep, and the employer is required to engage in an interactive CDARS are registered service marks of Promontory InterÀnancial 1etwork, LLC. ** RDC is subject to qualiÀcation requirements. process and reasonably accommodate the employee in

16 Valley Lawyer ■ JUNE 2021 www.sfvba.org question, so long as the accommodation does not impose an undue hardship on the employer. For example, should the employee be unable to perform essential duties even with reasonable accommodation, or if the worker is unable to perform essential duties without endangering the health or safety of the employee or others. Reasonable accommodations may include having the employee work from home; having the employer implement safeguards at the worksite to enable the employee to work without endangering him/herself or others; and, in the religious context, eliminating the confl ict between the religious belief or practice and the vaccine requirement, or a possible job restructuring/reassignment. Employers who demonstrate undue hardship may be exempt from having to provide accommodations, but undue hardship is generally diffi cult to demonstrate, and employers who opt to deny reasonable accommodations to their employees should consult an attorney. Per DFEH guidance, requesting proof of mandatory vaccination is not a disability-related inquiry, a medical examination, or a religious belief/practice-related inquiry and is thus allowed. However, to the extent that proof of vaccination may include disability-related medical information, employers should make clear with employees that they should omit that information. Additionally, similar to EEOC guidance, under DFEH guidance vaccination records/proof should be kept in a confi dential fi le separate from the employee’s general personnel fi le. If an employee requests a reasonable accommodation due to a disability or sincerely held religious belief/practice, the employee is afforded protection against retaliation. If the employer implements a mandatory vaccine program and an employee fails to comply absent a disability or sincerely-held religious belief/practice, the employer is not required to provide a reasonable accommodation and may take disciplinary action against those employees.

On General COVID-19 Inquiries While the main focus of this article is whether employers can mandate COVID-19 vaccines for their employees, it may be helpful to address some general inquiries employers may come across with regard to COVID-19 precautions in the workplace. [email protected] For example, per DFEH guidance, employers are allowed to ask all employees entering the workplace if they have COVID-19 symptoms such as fever, chills, coughing, or a sore throat, and may send an employee home if the worker displays such symptoms or tests positive for the virus. www.sfvba.org JUNE 2021 ■ Valley Lawyer 17 However, they must keep any confi dential employee must also be handled by the employer as a confi dential health information obtained in a medical fi le kept separate medical record. from the employee’s personnel fi le. Employers may also take a worker’s temperature as Critical Considerations long as it is for the limited purpose of evaluating the risk that Employers considering a mandatory company-wide the employee’s presence poses to others in the workplace. vaccine policy are advised to seek legal counsel prior to Similarly, an employer may require employees to submit to a implementing said policy to make sure that they are in COVID-19 test so long as it is job-related and consistent with compliance with EEOC, DFEH and local guidelines. business necessity. Managers, supervisors, and HR will need to be properly Guidance from the DFEH, the EEOC, and the Centers for briefed on the policies and pay special attention to following Disease Control and Prevention suggest that a requirement the proper guidelines for reasonable accommodations and for employees to submit to viral testing is generally accepted, engaging in an interactive process. while a requirement for antibody testing is not. All test results Adverse reactions from the employer-mandated vaccine must be maintained as confi dential medical records. may result in workers’ compensation claims and will likely be Employers may require employees to wear personal covered under workers’ compensation. Having employees protective equipment designed to reduce the transmission of sign waivers will likely be viewed as being unenforceable the COVID-19 virus. due to public policy. However, if an employee needs a reasonable Employers who choose to mandate vaccines should accommodation due to a disability, the employer needs keep in mind that the requirement should be based on to provide one unless doing so would create an undue objective facts, tied to an employee’s job duties, and hardship. consistently administered. If an employer suspects that the employee was absent There should also be a clear explanation of how to seek from work for a medical reason, the employer is allowed a medical or religious exemption as an accommodation. The to ask for a cause for the absence. If an employee cites an exemption requests should be thorough and assessed on illness or medical basis for the absence, that information an individual basis. All medical information collected in the process, including proof of vaccination, should be kept in the employee’s separate confi dential medical fi le. Additionally, employers should take into consideration the consequences of mandatory vaccination programs and what impact they will have on employee morale and weigh the risks against the benefi ts. Some employers may elect a policy of strongly encouraging as opposed to mandating the vaccine. In such cases, incentives such as offering paid time off from work to recover post-vaccine may also prove helpful. The EEOC and DFEH guidance is merely that, guidance, as the issues related to COVID-19 vaccines and procedures are constantly evolving. Because the vaccine has only been available for a few months as of the writing of this article, many of the issues outlined in the guidance and the article are novel and will take some time to play out. This article lays out a general summary of guidance issued by the EEOC and the DFEH. Employers who wish to implement a mandatory vaccine program are strongly encouraged to seek legal counsel for proper guidance.

1 EEOC.gov “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” December 2020. 2 29 U.S.C. §654 Sec. 5(a)(1). 3 42 U.S.C. §12101. 4 42 U.S.C. §2000e-2. 5 California Government Code §12940. www.itsupportla.com 6 DFEH.ca.gov “DFEH Employment Information on COVID-19” March 2021.

18 Valley Lawyer ■ JUNE 2021 www.sfvba.org COVID-19 Vaccines in the Workplace: COVID-19 Vaccines in the Workplace: Mandate or Not MCLE Answer Sheet No. 152 Mandate or Not INSTRUCTIONS: 1. Accurately complete this form. Test No. 152 2. Study the MCLE article in this issue. 3. Answer the test questions by marking the This self-study activity has been approved for Minimum Continuing Legal Education appropriate boxes below. (MCLE) credit by the San Fernando Valley Bar Association (SFVBA) in the amount 4. Mail this form and the $20 testing fee for SFVBA members (or $30 for non-SFVBA of 1 hour. SFVBA certifies that this activity conforms to the standards for approved members) to: education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. San Fernando Valley Bar Association 20750 Ventura Blvd., Suite 140 Woodland Hills, CA 91364 1. DFEH issued its latest COVID-19 vaccine 12. Title VII of the Civil Rights Act guidance in the workplace in July 2020. prohibits discrimination by covered METHOD OF PAYMENT: ❑ True ❑ False employers on the basis of race, color, Check or money order payable to “SFVBA” religion, sex, or national origin. Please charge my credit card for 2. EEOC issued guidance discussing ❑ True ❑ False $______. COVID-19 guidance for employers in December 2020. 13. Medical information such as proof ______Credit Card Number ❑ True ❑ False of vaccination can be placed in an employee’s personnel file and 3. Under OSHA’s general duty clause, does not need to be separated as a CVV code Exp. Date an employer is required to provide a place of employment that is free from confidential medical record. recognized hazards. ❑ True ❑ False Authorized Signature ❑ ❑ True False 14. Per DFEH guidance, is an employee 5. Make a copy of this completed form for your records. 4. According to EEOC guidance, vaccine needs a reasonable accommodation 6. Correct answers and a CLE certificate will exemption accommodations due to from wearing personal protective be mailed to you within 2 weeks. If you religious beliefs are protected under the equipment due to a disability, have any questions, please contact our ADA. the employer does not need to office at (818) 227-0495. ❑ True ❑ False provide it. Name______❑ True ❑ False Law Firm/Organization 5. Per EEOC guidance, an employer’s ______request for proof of vaccination from an 15. Adverse reactions resulting from Address______employee is allowed. a mandatory vaccine policy in City______❑ True ❑ False the workplace may result in a State/Zip______workers compensation claim by the 6. Under DFEH guidance, employers are Email______employee. allowed to ask all employees entering Phone______❑ ❑ the workplace if they have COVID-19 True False State Bar No.______symptoms. ANSWERS: 16. Medical and religious vaccine ❑ True ❑ False Mark your answers by checking the appropriate exemption requests are highly fact box. Each question only has one answer. 7. The ADA provides protection for specific and should be assessed on 1. ❑ True ❑ False employees seeking a vaccine exemption an individual basis. on the basis of a disability. ❑ True ❑ False 2. ❑ True ❑False ❑ True ❑ False 3. ❑ True ❑ False 17. According to DFEH guidance, 4. ❑ True ❑ False 8. DFEH guidance and the Fair employers may not, under any Employment and Housing Act are circumstance, check an employee’s 5. ❑ True ❑ False California specific. temperature. 6. ❑ True ❑ False ❑ ❑ True False ❑ True ❑ False 7. ❑ True ❑ False 9. Both EEOC and DFEH guidance discuss 18. Per DFEH guidance, employers may 8. ❑ True ❑ False an accommodation for an employee based on sincerely- held religious require employees to wear personal 9. ❑ True ❑ False protective equipment designed to beliefs. 10. ❑ True ❑ False ❑ True ❑ False reduce the transmission of COVID-19. ❑ True ❑ False 11. ❑ True ❑ False 10. Per EEOC guidance, the administration 12. ❑ True ❑ False of a FDA approved or authorized 19. EEOC guidance states that the 13. ❑ True ❑ False COVID-19 vaccine by an employer to employer should generally assume an employee is considered a medical that the employee’s request for 14. ❑ True ❑ False examination for purposes of ADA. religious accommodation is based on 15. ❑ True ❑ False ❑ True ❑ False a sincerely-held religious belief. 16. ❑ True ❑ False ❑ True ❑ False 11. The EEOC enumerates a four factor test 17. ❑ True ❑ False in determining a standard for whether 20. FEHA applies to employers with 5 or 18. ❑ True ❑ False an unvaccinated employee would pose more employees. ❑ ❑ a direct threat to others. ❑ True ❑ False 19. True False ❑ True ❑ False 20. ❑ True ❑ False www.sfvba.org JUNE 2021 ■ Valley Lawyer 19 By Michael D. White

California Judicial Council: WWhathat IItt Is,Is, HowHow IItt WWorksorks

Formed in 1926 by an amendment to the state constitution, the Judicial Council of California serves as the policymaking body for California’s state court system – the largest court operation in the entire nation.

Michael D. White is editor of Valley Lawyer magazine. He is the author of four published books and has worked in business journalism for more than 40 years. Before joining the staff of the SFVBA, he worked as Web Content Editor for the Los Angeles County Metropolitan Transportation Authority. He can be reached at [email protected].

20 Valley Lawyer ■ JUNE 2021 www.sfvba.org www.sfvba.org JUNE 2021 ■ Valley Lawyer 21 ORMED IN 1926 BY AN by county voters on a nonpartisan is charged with accomplishing the amendment to the state ballot at a general election. Vacancies Council’s goals and priorities. constitution, the Judicial Council are fi lled through appointment by the The Council exists, says Hoshino, of California serves as the policymaking Governor. “to create some uniformity and body for California’s state court consistency among California’s diverse system. Function communities. The voters and residents Serving a population of more The California Constitution directs the of the state have expectations as than 39.5 million people, or about 12 San Francisco-based Judicial Council to how the administration of justice percent of the total U.S. population, (CJC) to provide policy guidelines to will be applied. The Council exists the Council oversees the operations of the courts, make recommendations to create some of that consistency. the largest court operation in the entire annually to the Governor and One of the Council’s most important nation–those of the state’s Supreme, Legislature, and adopt and revise functions, in addition to policy and Appeals and Superior Courts. California Rules of Court in the areas rule making is securing resources and Currently, according to the of court administration, practice, and public money for the operation of the Council’s 2020 Court Statistics Report, procedure. state’s courts,” he says. some 1,750 judges sit on the bench in “The Judicial Council has many The monies are allocated and 500 court buildings sited throughout tasks and primarily, and overall, is distributed to the courts “in a way the state. responsible for the fair administration of that equalizes the access to justice in By far and away, the state’s justice in the state of California,” says the state’s communities and meets Superior Courts handle the vast bulk of California Supreme Court Chief Justice the public’s expectation that there the state’s judicial caseload. Tani G. Cantil-Sakauye. In addition to is equality both in terms of the law Those courts–one in each of the her role on the Supreme Court, she also and its principles, and their ability to state’s 58 counties–alone handled heads the Council itself. access the justice system.” more than 5.9 million civil, criminal, “We have the largest judiciary in Hoshino heads a staff of family, juvenile, probate, mental health, the United States and therefore have approximately 800 people responsible and habeas cases in FY2018-2019, a number of issues and instructions for implementing Council policies, the report said. and advisory committees that propose supporting its day-to-day operations, On June 2, 1998, California voters changes in our rules to create best and maintaining the California approved a constitutional amendment practices in our courts. We grapple with Court Technology Center–the permitting the judges in each county things like our statewide budget, with court system’s secure, centralized to unify their superior and municipal new legislation, supporting legislation, datacenter, operated under contract courts into a single superior court with and initiating legislation that impacts the by Newark, California-based Siemens jurisdiction over all case types. fairness of the branch.” IT Solutions and Services. The goal of court unifi cation is The Council, she says, “also does to improve services to the public by many things regarding trial courts and Make-Up consolidating court resources, offering what litigants need there. We have a The Judicial Council–based in San greater fl exibility in case assignments, very strong education policy for judges Francisco with a branch offi ce in and saving taxpayer dollars. and work to meet the needs of people Sacramento–is composed of 21 By February 2001, judges in all 58 who don’t have a lawyer when they voting members: the Chief Justice counties had voted to unify their trial come to court. All of it is aimed at of the California Supreme Court; courts. access, diversity and fairness in the 14 judicial offi cers appointed by the judicial branch.” Chief Justice–one associate justice Membership, Qualifi cations Another key CJC function is of the Supreme Court, three justices The superior courts have 1,754 securing public monies to fund the day- of the Courts of Appeal, and ten trial authorized judges and hundreds to-day operations of the state’s court court judges); four attorney members (in terms of full-time equivalents) system. appointed by the State Bar Board of of authorized commissioners and Martin Hoshino serves as Trustees; and one member each from referees. Administrative Director of the California the State Assembly and the State The California Legislature Judicial Council. Senate. determines the number of judges in Accountable to the Judicial The state constitution requires each court. Superior court judges Council and to the Chief Justice for that the Council also have two non- serve six-year terms and are elected the performance of Council staff, he voting members who are court

22 Valley Lawyer ■ JUNE 2021 www.sfvba.org administrators. The Administrative Director is a non-voting member who serves as Secretary, and the Chief Justice can also appoint further advisory (non-voting) members. New judicial members of the The Judicial Council has Council and its committees, the many tasks and primarily, and majority of whom are publicly elected justices and judges, are selected overall, is responsible for the through a nominating procedure fair administration of justice intended to attract applicants from in the state of California.” throughout the legal system and to result in a membership that is diverse in experience, gender, ethnic background, and geography. Tani G. Cantil-Sakauye CJC members do not represent any particular constituency but act CALIFORNIA SUPREME COURT CHIEF JUSTICE in the best interests of the statewide judicial system and the public. The Council also has approximately ten advisory members who include court executives or law enforcement, legal services, public appellate courts need to respond to administrators, the chair of the libraries, and other judicial branch local conditions and access to justice,” Council’s Trial Court Presiding stakeholders. wrote Chief Justice Cantil-Sakauye last Judges Advisory Committee, and the The Judicial Council’s staff serves December. president of the California Judges the courts, justice partners, and the The state’s courts, she said Association. public, improving access to justice with at the time, “should assess their Staggered terms, with roughly a variety of programs and services. circumstances and ability to operate one-third of the Council’s membership In addition to directly supporting under their local constraints. changing each year, “ensure the Council’s advisory bodies, Council Courts may still make requests continuity while creating opportunities staff provide services to the courts in for emergency orders based on local for new participation and input.” the areas of budgeting, accounting, conditions, the ability to hold remote The Council carries out much of human resources, education, court hearings and provide social distancing its work through a number of internal construction, real estate management, while harmonizing directives from local committees, advisory committees, security consulting, information health offi cers and local government and task forces, with about one-third technology, research, communications, offi cials, as well as clarity for local of the judicial branch’s judges and criminal justice, family and juvenile law, emergency rules of court.” justices participating as members. and more. Through orders issued by Chief Every superior and appellate court in Justice Cantil-Sakauye, and emergency the state is represented on at least Addressing Special Needs Rules of Court approved by the Judicial one advisory body. • COVID-19: When the pandemic Council, the judicial branch immediately While the majority of committee struck in full force in March 2020, the and proactively gave courts the members are justices, judges, and Council sprang into gear and began “emergency tools” to confront the impact court personnel, the advisory bodies closely monitoring the pandemic’s of the pandemic–tools built around the include a broad range of members to evolving impact on the operations of the guidelines provided by the Department of ensure the Council hears from many state’s entire judicial system. Public Health, and the federal Centers for voices from within and outside of the “Because our 58 trial courts and six Disease Control and Prevention to limit judicial system. appellate districts face different impacts the spread of the virus. Other members include from the latest COVID-19 surge, and The state’s Superior Courts were attorneys, interpreters, child have different capacities and resources, thus authorized “to adopt any proposed advocates, educators, probation statewide orders for case processing, rules or rule amendment intended to offi cers, business executives, and at this time, are inappropriate and address the impact of the COVID-19 representatives from tribal courts, would impair the fl exibility trial and pandemic to take effect immediately, www.sfvba.org JUNE 2021 ■ Valley Lawyer 23 Recently, in response to the increased use of remote proceedings resulting from the COVID-19 pandemic, the Council approved updated guidelines for spoken The Council exists to create some language interpreting in video remote uniformity and consistency among proceedings. The revised guidelines support both physical and virtual California’s diverse communities.” courtrooms to ensure access to justice and the health and safety of court users, court staff, and judicial offi cers. In addition, it approved a “one- time allocation methodology” for FY 2021-22 to help trial courts plan pending the fi nal FY 2021-22 budget without advance circulation for public • Court Translation: California is home allocations for translation services. comment.” to one of the most diverse populations Over the following 15 months, the in the world, with more than 200 • Clearing a Logjam: One of the Council has issued a fl urry of Emergency languages and dialects spoken by the many negative impacts of the Rules to be implemented throughout the people who live there. COVID-19 pandemic on the state’s state’s court network in a critical effort Currently, some 44 percent of court system has been a signifi cant to retain public access to the justice the state’s residents speak a non- backlog of criminal cases in which system and, at the same time, adhere to English language at home, while almost the defendant has been arraigned, a regimen that would protect court staff one-fi fth of the state’s population– but there had been minimal progress and the public from the spread of the approximately 7 million people–have toward case resolution either through COVID-19 virus. limited English-language skills. plea or trial. The Rules covered a host of “When I became Chief Justice in “This burden of the pandemic- emergency operational issues, including 2011, I became aware that there were induced criminal trial backlog falls on the suspension of judicial foreclosures some concerns about people’s ability all justice system partners, victims, and evictions, the renewal of restraining to understand clearly and meaningfully and defendants,” said Chief Justice orders, the suspension of jury trials, the language that was spoken in the Cantil-Sakauye. extensions of the preliminary hearing courts,” says Chief Justice Cantil- “Prosecutors may have witnesses and arraignment times, prioritizing Sakauye. who become unavailable over time critical juvenile court hearings, and the The result was the creation of a or fi nd that evidence in the case has electronic service of documents in most task force “to study language access in become stale. Defendants and their civil cases. the state’s judicial system. They worked counsel must continue to develop the Perhaps the most dramatic changes on signage and improving interpreter defense case, with counsel having occurred in the implementation of new services, and have worked on providing only limited access to in-custody technologies and how they impacted the defendants. Defendants who are video court reporters and providing actual manner in which trials have been out of custody are often severely video interpreters in rural areas or conducted during the pandemic. hampered in their ability to steady wherever there is a need.” Among the most signifi cant impact their lives—through employment, Currently, about 91 percent of court was seen in the capability of parties obtaining a driver’s license, moving interpretation services in courtroom to use technology to appear remotely to lower cost housing, etc.—due to proceedings is in Spanish, while for a deposition, criminal defendants the lack of resolution of their criminal American Sign Language, Arabic, to appear through counsel or remotely cases. Victims are without timely Eastern Armenian, Western Armenian, via technology “in all pretrial criminal resolution and restitution.” Cantonese, Farsi, Japanese, Khmer, hearings,” and courts being given the The courts, prosecutors, Korean, Mandarin, Portuguese, Punjabi, option of requiring “hearings and court and defense counsel “will face a Russian, Tagalog, and Vietnamese have operations to be conducted remotely via substantial number of cases as we also been certifi ed for translation in the use of technology, with the consent emerge from regional stay-at-home California’s courts. of the defendant in criminal cases.” orders and the COVID-19 pandemic

24 Valley Lawyer ■ JUNE 2021 www.sfvba.org unless the justice community makes a The past year, the CJC found, the courts, video hearings and electronic concerted effort to take action now.” “has accelerated the ongoing need evidence offered during video hearings, And take action the CJC did, moving for data due to the pandemic’s effects admissibility standards for digital to support trial courts establishing on court operations and services, evidence, and online dispute resolution “readiness conferences” for the early such as the number of courts holding processes. disposition of criminal cases by making remote proceedings and in which case Most recently, the Council proposed retired judges available through a types; the number of litigants accessing a new court rule that specifi cally “streamlined” Temporary Assigned self-help centers, both in-person and addresses “lodged electronic exhibits,” Judges Program (TAJP). remotely; and the number of fi lings and which are reportedly described as The move proved highly effective in dispositions. “an exhibit in electronic format that “providing courts with critically needed In March, the Chief Justice named is not fi led, but rather is electronically judicial assignments in a timely manner” a Council workgroup “to examine court transmitted to or received by the court and expanding the pool of assigned practices adopted during the pandemic for temporary storage pending use at a judges available to the courts. and recommend those that demonstrate trial or other evidentiary hearing.” “I encourage courts to work with the most promise.” An electronic exhibit is described their justice system partners to create Over the past several months, the as “something which exists only in readiness conference programs that are group–the Information Technology electronic format— e.g., an email as expansive as possible, given the need Advisory Committee–has focused on message or a deposition transcript— or in their jurisdiction during the pandemic,” making recommendations as to how an electronic copy of a tangible object said the Chief Justice. the state’s courts can adapt to new such as a map. The proposed rule does “Going forward, any court that technologies to better operate in the not cover physical electronic storage requests an emergency order that rapidly evolving world of virtual justice. devices.” includes an extension of time for holding The CJC is reportedly zeroing in If approved after a period of public criminal trials will be required to state if on workable proposals in the areas of comment, the new rule would be they have established a program and information security, the use of vendors ‘on-the-books’ as Rule 2.901 of the include a description of it,” she added. to store electronic evidence fi led with California Rules of Court. “I anticipate ending this temporary program when California’s state of emergency is lifted, but I may elect to end it sooner if the pandemic-related need abates.”

Recent Actions At its May 2021 meeting, CJC Administrative Director Hoshino provided an overview of Governor Newsom’s proposed FY 2021–22 state budget. The proposed budget for the judicial branch includes money to restore $200 million previously cut from the judicial branch budget, address pandemic- related case backlogs, increase legal aid, expand pretrial services, build new courthouses and maintain existing facilities, and forgive fi nes and fees for low-income people. The Council also approved a menu of new data and information policy concepts aimed “at improving how the judicial branch uses data and information to guide decisions on expanding and improving court operations and www.verdict.net services.” www.sfvba.org JUNE 2021 ■ Valley Lawyer 25 By Mark J. Phillips and Aryn Z. Phillips

HE FRENCH CALLED IT THE CRAZY YEARS FOR In 1921, Arbuckle was the highest paid fi lm star in the extraordinary social, economic and artistic Hollywood. King of the two-reel comedies, he was beloved by changes that occurred. The British called it The millions for his pratfalls, his pie fi ghts and his innocent, angelic Golden Age Twenties for its years of economic boom. In smile. Studios churned his movies out by the score, and ticket America, it was the Roaring Twenties. buyers across the country stood in line to watch them. By any name, it was the decade in which the 20th But all that came to a tragic end on September 5, 1921. Century came of age. Coming off a punishing year-long schedule of back- The Twenties brought peace and prosperity to most, to-back fi lming, Arbuckle and several friends drove to San and a sense of social evolution. Charles Lindbergh piloted Francisco for a spell of rest and relaxation over the Labor Day the Spirit of St. Louis from New York to Paris. Baseball was weekend. Prohibition was in full swing, but liquor was available America’s pastime and Babe Ruth its unquestioned king. to those who could afford it, and Arbuckle certainly could. Prohibition in 1920 did little to slow the party atmosphere That weekend, after a drunken revel in his suite at the St. of jazz, fl appers and excess, that roared unabated until the Francis Hotel, Arbuckle was wrongfully charged in the rape and stock market crash of October 1929. death of 26-year old actress Virginia Rappe. And, despite the highs and lows, through it all, America Rumors, none of which were true, swirled of his sexual went to the movies. deviation and he was caught in a fi restorm of ambitious politicians, rapacious studio owners, social reformers and A Sad Anniversary newspaper publishers. Arbuckle was tried in both the press This year marks one hundred years since the fi rst of the great and the courts, which, after three trials, acquitted him of any Hollywood trials, that of Roscoe “Fatty” Arbuckle, and the wrongdoing. start of America’s fascination with crime that has not abated But the damage was done. Blacklisted and fi nancially since. ruined, he was one of the most reviled men in America.

Mark J. Phillips is a shareholder at the law offi ces of Lewitt Hackman in Encino, California. Aryn Z. Phillips is a graduate of the Harvard School of Public Health and holds a Ph.D. in Public Health from UC Berkeley. They are the co-authors of Trials of the Century (Prometheus, 2016). They can be reached, respectively, at [email protected] and [email protected].

26 Valley Lawyer ■ JUNE 2021 www.sfvba.org Rise and Fall entered the American lexicon as any group that mismanages Just thirty-four, his rise and fall in the world had been dizzying its affairs despite a zany excess of energy and activity. from every perspective. In fact, so recognizable were the disaster-prone Kops Born March 24, 1887, Arbuckle was one of fi ve children with their tall, British-style police helmets, that many police born into a poor farming family in Smith Center, Kansas. His departments throughout the United States quickly abandoned father, William, presumed him to be the product of his wife’s the headgear in favor of the eight-point offi cers’ caps worn by infi delity and, in revenge and derision, named him Roscoe offi cers today. Conkling Arbuckle, after the notorious U.S. senator and Tipping the scales at more than 300 pounds, wherever womanizer from New York. he went, he was known as Fatty and that nickname appeared Arbuckle’s movie success was neither chance nor favor, everywhere in newspaper and magazine articles, on movie but rather the result of talent and many years of hard work. posters and in product promotions. But it was only a screen On his own since age 12, even then 185 pounds, Arbuckle name, and Arbuckle never used it himself, nor did his friends was a skilled performer, capable of physically-demanding use it in conversation with him. When anyone addressed him slapstick humor, dancing and pratfalls. His charm won over as Fatty in public, he politely responded, “I have a name, you audiences around the world and he spent his early years know.” headlining Alexander Pantages’ national touring group. By the summer of 1921, Arbuckle was at the height of his Picnicking one afternoon in El Paso, Texas, the troupe success and popularity, as Paramount had signed him to an found themselves surrounded by soldiers led by Mexican unprecedented three-year, $3 million contract that made him revolutionary Pancho Villa. Arbuckle and Villa introduced the highest paid movie actor of his day. He employed a butler themselves, and, in a moment of sublime historical mischance, and a chauffeur, entertained often, spent freely, and saved began throwing fruit pies at each other in fun. nothing. When Arbuckle later introduced the now iconic pie fi ght He kept six cars, including a Rolls Royce and a custom- in early fi lms, the gag became a mainstay for him, as well as built Pierce-Arrow touring car four times the size of an average scores of other fi lm comedians who adopted and perfected the car. “Of course, my car is four times the size of anyone else’s,” routine. Arbuckle told interviewers. “I am four times as big as the He ultimately found stardom with Keystone Studios, the average guy!” At $25,000, the car cost one hundred times the seminal early movie studio in Los Angeles founded by fi lm average American’s annual salary. producer and comic genius Mack Sennett, whose Keystone These excesses of Hollywood stirred the passions of the Kops–anchored at one end by Arbuckle’s sizable girth–have national press and caught the attention of politicians. www.sfvba.org JUNE 2021 ■ Valley Lawyer 27 Newspapers, particularly the Hearst dailies, ran editorials Back in San Francisco, Rappe’s condition continued to critical of movie actors, and calls came from many directions for deteriorate. She was moved to the Wakefi eld Sanitarium on the industry to police itself. It was in this charged environment Thursday afternoon. By then, delirious with a high fever, she that Arbuckle announced an “open” party in San Francisco, died of peritonitis and a ruptured bladder in the early afternoon loaded his Pierce-Arrow with supplies, and headed north from of Friday, September 9. Los Angeles. After Rappe’s death, Maude Delmont contacted the Monday, September 5, was the national holiday, and San Francisco Police Department and swore out a complaint Arbuckle’s suite at the St. Francis Hotel began to fi ll with against Arbuckle, alleging that he had dragged Rappe in his guests. Amongst them was a curious pair–Maude Delmont bedroom and raped her, either personally or with a Coca-Cola and Virginia Rappe, the former a petty criminal and the latter bottle, and that her death was the result of that assault. a twenty-fi ve-year-old bit actress with a reputation as a likely Arbuckle did not even know that Rappe had died until prostitute. two San Francisco police offi cers knocked on his door and Arbuckle had never met either of them except in passing summoned him back to San Francisco for questioning. and there is some dispute about what they were doing in San Early Saturday morning, Arbuckle returned to San Francisco that weekend. Francisco with an attorney, Frank Dominguez, and reported to By midmorning, the party in Arbuckle’s suite was in full the Hall of Justice, where he was questioned for three hours. swing. There was food, bootleg liquor, music and dancing, Dominguez believed the matter of Rappe’s death and a stream of guests coming and going. Rappe became would be dispensed with easily and in due course, but was extremely drunk, then inexplicably erupted into hysterics and concerned about the consequences of Arbuckle’s possession ran through the suite ripping at her clothes. of bootleg liquor. He advised Arbuckle to remain silent. Startled witnesses believed she had been accidentally His concerns were seriously misplaced and at about kneed in the abdomen by Arbuckle while dancing. When midnight that night, Saturday, September 10, Arbuckle was Arbuckle later attempted to use the arrested and charged with fi rst- bathroom in his room, he found degree murder. He spent the Rappe vomiting into the toilet. next 18 days in jail until bail was She was crying with pain, and he granted on September 28. carried her to his bedroom to lie down. Colliding Forces When Delmont entered the That Arbuckle came to fi nd himself room, she found Rappe on the bed, in this fi ght for his life was the disheveled and screaming, with result of several colliding forces. Roscoe leaning over her. The clamor First, Delmont’s inexplicable brought other guests, and Delmont fabrication of the assault on ordered the bathtub fi lled with cold Rappe, given in the form of a water to cool Rappe’s fever. sworn affi davit, could not be easily Arbuckle located a vacant room down the hall and took explained away or ignored by the authorities. her there to lie down, Delmont following to keep an eye on her. Second, the new district attorney in San Francisco, He phoned the hotel manager and asked for the physician 46-year-old Matthew Brady–a politically connected and on call, who opined that she was simply suffering from too ambitious lawyer in his second year as prosecutor who saw much to drink. The party continued without Delmont or Rappe the prosecution of Arbuckle as a steppingstone to higher for the rest of the afternoon in high spirits, and with no other offi ce. incidents. Finally, and importantly, the immediate focus of both the The next day, Tuesday, September 6, Rappe was no local and national newspapers owned by William Randolph better. Delmont summoned another doctor, Melville Rumwell, Hearst was overwhelmingly and uniformly biased against a physician associated with the local Wakefi eld sanitarium. This Arbuckle. was an unusual selection, but perhaps telling as Dr. Rumwell The coverage was all-pervasive. Beginning Monday, was a specialist in maternity, and Wakefi eld an institution with a September 12, the Hearst papers ran sensational front-page reputation for performing abortions. headlines every day, including “Fatty Faces Coroner’s Jury,” That afternoon, Arbuckle checked out of the St. Francis, “Orgy Girl Offered Bribe to Keep Mum” and “Movieland Liquor picking up everyone’s tab for the weekend. He boarded Probe Started – 40 Quarts Killed At Fatty’s Big Party.” the coastal passenger liner Harvard for the trip south to Los So did papers all over the United States. The coverage in Angeles, and on Wednesday, September 7, he returned to The New York Tribune, founded in 1841 by abolitionist Horace work. Greeley, was nearly continuous, but, while some reporting was

28 Valley Lawyer ■ JUNE 2021 www.sfvba.org relatively balanced, this was the age of yellow journalism and much of the content pilloried Arbuckle.

Trial One Trial commenced before Superior Court judge Harold Louderback on Monday, November 14. Arbuckle was now represented by attorney Gavin McNab, well known for representing Hollywood celebrities, and a team of four other respected attorneys. After fi ve days of questioning, a jury of seven men and fi ve women was empanelled. Prosecutor Matthew Brady was working with weakening evidence and recalcitrant witnesses. Those present at the Labor Day party had been interviewed by the police immediately after Rappe’s death and had initially backed Delmont’s story, but several had recanted and refused to sign statements. Brady responded by threatening them with perjury and confi ning them in protective custody to prevent the defense from conducting interviews. Brady’s most diffi cult challenge, however, was Maude Delmont, on whose claims the charges were largely based. Of uncertain age, her photo reveals her to be a woman of middle age with a dour expression. Using a string of aliases, she had an extensive police record, with at least fi fty charges ranging from bigamy to extortion fi led against her. Not only was she a lifelong criminal, she had changed her story so many times that by the time trial commenced, both sides seriously doubted her credibility. To guarantee her testimony at the earlier inquest would not be contradicted at trial, Brady had her jailed on bigamy charges and refused to release her to testify. Defense requests to call her to the stand were turned down by the court. Prosecution witnesses included guests at the party, a studio security guard who testifi ed to Arbuckle’s having met Rappe in 1919, a hotel chambermaid who testifi ed to the rowdy nature of the celebration, and a criminologist who testifi ed that Arbuckle’s fi ngerprints on the inside of his bedroom door obscured those of Rappe, suggesting that Rappe had struggled to open the door and that Arbuckle had forced it closed. Defense experts were called to demonstrate that Rappe’s death could have been the result of disease. Other witnesses included those who testifi ed that they had witnessed Rappe on prior occasions drink to excess and run about tearing at her clothes, even running naked in the streets. Arbuckle was the fi nal witness in his defense. His testimony was described as calm, lasting four hours. He recounted the events of the party and how he found Rappe on the fl oor of his bathroom in front of the toilet, carried her into his room and put her on the bed. He described her distress, the screaming and the tearing at her garments. On cross-examination, the prosecutor retraced Arbuckle’s testimony but was unable to fi nd any weaknesses https://www.adrservices.com/neutrals/johnson-barbara/ in his defense. It was clear that if a crime had been www.sfvba.org JUNE 2021 ■ Valley Lawyer 29 committed, no one had seen it and there was no physical was canceled, and without the ability to work and his reputation evidence that pointed to Arbuckle. in tatters, Arbuckle was ruined. Maude Delmont, with her black past and her shifting story, Fueled by frenzied newspaper coverage, the groundswell was never called as a witness. of negative publicity continued to build. Amid a Hollywood Both sides made closing arguments, the defense lifestyle, considered by most Americans to be out of control, portraying Arbuckle as a kind man who had sweetened the lives Arbuckle was only the most visible example. of millions of little children, now needlessly suffering when no Over the next several years, other scandals set the crime had been committed, and the prosecution calling him a newspaper presses running, including the still-unsolved murder moral leper with whom no woman in America was safe. of Paramount director William Desmond Taylor and the 1923 The jury retired for deliberation. After forty-one hours, they death of silent fi lm heartthrob and morphine addict Wallace returned on December 4, unable to render a verdict, having Reid. reached a 10-2 vote for acquittal. Those scandals, along with the Arbuckle trials, led to the creation of the Motion Picture Producers and Distributors of Trial Two America, known as the Hays Offi ce, under the dictatorial sway A second trial commenced on January 11, 1922, before a new of former U. S. Postmaster General, Will Hays. jury, again with Brady for the prosecution and McNab for the Just as major league baseball hired Judge Kennesaw defense. Mountain Landis as Commissioner in 1921 following the Many of the same witnesses testifi ed, and buoyed by infamous 1919 Black Sox Scandal, so the Hays Offi ce was his near success in the fi rst trial, McNab chose not to have created to deal with a trail of broken lives and disgrace that Arbuckle testify, focusing instead on a parade of witnesses who threatened the burgeoning fi lm industry, and the public backlash that ensued. trashed Rappe’s reputation. Formed in January of 1922, one of Hays’ fi rst moves was The strategy backfi red, with nearly disastrous results. After to blacklist Arbuckle, prohibiting him from working in fi lms. two days of deliberation, the jury returned deadlocked again, Three years later, Arbuckle’s wife, the silent fi lm star Minta but this time voting 10-2 for conviction. Durfee, from whom he had been separated nine years, divorced him. He married twice more, in 1925 to actress Doris Deane, Trial Three who he met for the fi rst time on the fateful 1921 passenger liner The third and fi nal trial commenced on March 6, 1922. After the trip home from San Francisco, and again in 1932 to a young near scare of the second jury, McNab left no stone unturned, actress, Addie McPhail. carefully detailing both Rappe’s sordid past and calling Arbuckle After a high-spirited dinner in Manhattan on June 29, 1933, to the stand to testify in his own defense. to celebrate a just-received offer to appear in a feature-length After fi ve weeks and only six witnesses called by an Warner Bros. fi lm, the couple returned to their Central Park exhausted prosecution, the jury retired to deliberate on April 12. Hotel and went to bed. That night, Arbuckle died in his sleep. It returned in less than fi ve minutes. He was forty-six. Not only did it vote unanimously for an acquittal, it took the few minutes behind closed doors to craft a written apology to Largely Forgotten Arbuckle, which it handed to the court. The jurors wrote: A century of innovation, from silent to sound, short to feature- length, black and white to color, faltering nitrate to sophisticated “Acquittal is not enough for Roscoe Arbuckle. We feel computer graphics, has relegated Arbuckle and his that a great injustice has been done him…We wish contributions to the industry to the back of the bottom drawer him success, and hope that the American people will of cinema history. take the judgment of fourteen men and women who Film scholars and critics may know him, but his fi lms– have sat listening for thirty-one days to evidence, that those that still exist–are now largely unwatched as America has Roscoe Arbuckle is entirely innocent and free from all all but completely forgotten its once darling Fatty Arbuckle. blame.” Few Americans today even recognize his name, and those who do only vaguely remember an alleged rape and rumored But the verdict of a single San Francisco jury, even one Coke bottle–the legacy, obituary really, written for Arbuckle motivated to the extraordinary gesture of penning a written in the newspapers in the fall of 1921 when he was still a apology to the defendant, was not enough to save Arbuckle’s household name. career. Few have fallen so far, so fast. Within a week of the death of Virginia Rappe, exhibitors in The one who profi ted most from that fall, was, perhaps, every city in America had withdrawn Arbuckle’s fi lms, and those William Randolph Hearst, who boasted later that the Arbuckle’s that had been completed and ready for distribution were never trial and his fall from grace had served its purpose by selling released. His record-setting, three-year $3,000,000 contract more of his newspapers than the sinking of the Lusitania.

30 Valley Lawyer ■ JUNE 2021 www.sfvba.org Valley Lawyer

NEW MERGER: The law fi rms of Shenon Law and Alpert, ALSPs SURGE: Alternative legal service providers Barr & Grant have merged. (ALSPs) have accelerated their growth to a nearly $14 The new fi rm will move forward under the name of billion market share globally and are quickly becoming a Alpert, Barr & Grant, with Gary Barr, Adam Grant and mainstream segment of the legal market, according to a Natela Shenon leading the combined practice as equity recent study released by research consultancy Thomson shareholders. Reuters. The new fi rm is located at 15165 Ventura Blvd, The growth comes as “competitive concerns Ste. 200, in Sherman Oaks. are diminishing, and law fi rms and corporate legal departments are increasingly open to partnering with ALSPs to stimulate growth and reduce costs.” ONLINE BAR TESTING: A new The fastest growth has been among ALSPs that committee―the Joint Supreme law fi rms have formed as captive subsidiaries, while Court/State Bar Blue Ribbon U.S.-based law fi rms are more likely to use ALSPs for Commission on the Future of the litigation-related services. California Bar Exam―has been Law fi rms and corporations say that over the next tasked with considering changes fi ve years they expect to nearly double the average to the California bar exam and number of ALSP service lines they use. making recommendations in 2022. One of the fastest-growing services where law fi rms One of the changes to be studied by the new are engaging ALSPs is consulting on legal technology as committee is whether all or part of the two-day California “ALSPs are often nimble early adopters and innovators bar exam should be administered online. for cutting-edge technologies such as artifi cial The commission will also look into the state’s intelligence, block-chain, predictive analytics and smart experience with a temporary provisional licensure contracts.” program and will consider the National Conference of Bar Examiners’ recent recommendation “to refocus bar exams on problem solving and real-world practice.” FISH STICKS? REALLY…?: The U.S. Second Circuit has set aside the copyright claims against Amazon, Netfl ix and Apple brought by the writers of a children’s song about MALPRACTICE CLAIMS: Legal malpractice claim payouts fi sh sticks. were the highest on record from 2019 through the middle The song was used in a fi lm about burlesque dancers, of 2020, with the fi gures expected to remain high after with judges saying the movie is a documentary afforded the end of the COVID-19 pandemic, according to a new leeway in fair-use commentary. report by Washington, D.C.-based insurance broker Ames Songwriters Tamita Brown, Glen S. Chapman and & Gough. Jason T. Chapman sued Netfl ix Inc., Amazon.com Inc. and While the number of claims fi led during the period Apple Inc. in 2020, alleging that the media companies, remained relatively fl at compared to previous years, directly and indirectly, infringed the size of payouts surged, according to Ames & Gough’s their copyright in a children’s annual survey of 11 leading lawyers’ professional song titled “Fish Sticks n’ responsibility insurers, which together provide insurance Tater Tots” by distributing and to 80 of the 100 largest law fi rms in the U.S. by revenue. streaming a documentary fi lm Nine of the 11 insurers surveyed reported titled Burlesque: Heart of the participating in a claim payout that exceeded $50 million Glitter Tribe that incorporates a during the period, with two paying a claim between $150 portion of the song without authorization. million and $300 million and four paying a claim that The plaintiffs’ song describes a student’s journey topped $300 million, the report found. from her classroom to her school cafeteria to eat fi sh The same number of insurers said the frequency of sticks and tater tots for lunch. their claims either decreased or stabilized between 2019 The fi lm chronicles the stories of burlesque dancers and 2020, with one insurer reporting a 6 percent-to-10 in Portland, Oregon, through interviews, backstage percent increase in claims and the other experiencing a preparations and on-stage performances. One of the hike that fell between 11 percent to 21 percent, according scenes depicts a performance in which one of the to the report. dancers, fi rst dressed as a “reverse mermaid”—with the The largest number of malpractice claims were head of a fi sh and the legs of a woman—changes into concentrated in the practice areas of corporate and brown pants and steps from behind a sign labeled “hot securities, business transactions and trusts and estates, oil” to appear as though she has been transformed into a according to the report. fi sh stick.

www.sfvba.org JUNE 2021 ■ Valley Lawyer 31 By David Mercy A Survival Tool:

OBODY LIKES TO GET SUED penalties is the enforcement arm of law fi rms, this number, of course, can or be subject to massive fi nes, the California Consumer Privacy Act vary greatly. especially lawyers. Attorneys fi ght (CCPA).1 suits and fi nes, not fall prey to them, Although the penalties levied for The Stark Math right? violations may appear to be small Let’s use a workable number which And, yet the danger is there, at fi rst glance–$100 to $750 per typically would be on the small side: and part of any fi rm’s due diligence consumer per incident, they can quickly 100 clients, each the subject of only a is to ensure that the highest level grow to a huge amount when taken single incident, per attorney. of protection is in place in all areas, collectively. The low-ball penalty–100 x $100 specifi cally in terms of liabilities As a rule, cyber thieves do not = $10,000; the high, 100 x $750 = stemming from two types of network breach a system to steal a single $75,000. catastrophes–security failures and client’s sensitive, personal information– This is not welcome news for a system failures. they break in to steal the information on solo practitioner, and while it may not Any unauthorized network every client in the system. bankrupt a practice, it will hurt. intrusion, from a hacker data theft to a How many clients are included Looking at a mid-sized fi rm with ransomware attack is a system breach. in a typical attorney’s data system, ten attorneys, the penalty would run The body that investigates and imposes including dormant or former clients? between $100,000 and $750,000, From solo practitioners to the biggest while an even larger practice with 30

David Mercy is the Business Development Director of IT Support LA, an IT-Managed Services Provider and Technology Concierge. He can be reached at [email protected].

32 Valley Lawyer ■ JUNE 2021 www.sfvba.org attorneys would be hit with a fi ne of Read the policy’s wording very the prior fi gure of 26 percent for 2019, $300,000 to $3,000,000. carefully. Coverage may handle some while the number of cyber-attacks on law And so on and so on. fi nes, but not all, and although there fi rm networks have grown exponentially The penalties above only detail the may be $1,000,000 in coverage, with the onset of the COVID lockdowns civil penalties for non-compliance with there is often a ‘sublimit’–in effect, a and the transition to an increased remote CCPA regulations and are levied by the deductible–with responsibility to pay a workforce.2 California Attorney General. penalty that could hover in the range of For small fi rms, which may not use Consumers have the private right $200,000. a top-notch MSP, once a serious breach of action to sue if their non-encrypted or a ransomware attack occurs, a good or non-redacted personal information Make Sure You’re Covered cybersecurity insurance policy offers is subject to “unauthorized access and Supplemental cybersecurity insurance is coverage in a number of areas, including exfi ltration, theft or disclosure” due absolutely critical. the extremely high cost of data/disaster to a business’ failure to “implement To avoid any misconceptions, recovery if a poor data backup system and maintain reasonable security know this–breaches to your internal was in place, or if such a system did not procedures appropriate to the nature of data system can occur despite of the exist in the fi rst place. the information.” perceived excellence of your IT or For fi rms that use an MSP, it is It is impossible to formulate the managed services provider (MSP). advisable to ensure that local backups damage to a fi rm that would result from Even with the fullest extent of Next are unconnected to the network and multiple suits brought by clients whose Generation network security, it is typically that cloud backups are in place and sensitive data had been compromised. routinely tested for both reliability and This does not include consumers retrievability. with the standing to show that a Unfortunately, too many so-called data breach caused them real world IT Guys are buffoons in MSP clothing, losses, such as the loss of a job due so the designation of managed services to personal information stolen and, provider by itself is not a guarantee of for example, posted onto Twitter, competence. Facebook and other social media platforms. Navigating Coverage To put it mildly, adding it all up, it is Law fi rms need to consult their insurance sobering to consider the consequences agent for any quotes and particulars of having to face the ultimate liability about different types and levels of of a devastating data breach to a law coverage. fi rm’s database. To be optimally effective, a policy an end-user in the law fi rm that falls must include two event types–security Already Covered? prey to a phishing expedition and injects failures and system failures. As for Maybe…maybe not, but even if a fi rm malware into the system. coverage itself, it is advisable to inquire has liability insurance, the question The best analogy is that your about fi ve areas that should be present needs to be asked as to what extent network is like a castle. in the policy: the coverage goes as many attorneys Instead of a moat and drawbridge, think that a data breach incident must a fi rm relies on anti-virus (AV), fi rewalls, Network Security: be covered by their Legal Professional anti-spam fi ltering, and other safeguards Typically includes fi rst-party costs Liability (LPL) insurance. to deny cybercriminals entry. What incurred as a result of dealing with the While, typically, an LPL policy may good is a castle wall if someone inside attack, such as IT forensics, breach offer some rudimentary protections, the accidentally leaves the gate open and notifi cation to clients, negotiations and intricacies of cyber-loss culpabilities are the drawbridge down? So it is with a payment of a ransom. Some policies not the policy’s focus, and LPL policies network as well. widen the coverage to include public will only offer the most basic coverage. Unfortunately, in the real world, it is relations, legal expenses, call center Questions need to be asked–for not a matter of if, but of when a network setup, etc.; example, what conditions exist in breach will occur. your LPL policy that could affect your According to the American Bar Privacy Liability: coverage? Does it cover against fi nes Association, 29 percent of law fi rms This covers the liabilities and third- as well as litigation, and if so, to what fell victim to a cyber-attack as of their party costs incurred from a cyber amount? October 2020 report–up 3 percent from incident or a privacy law violation, www.sfvba.org JUNE 2021 ■ Valley Lawyer 33 specifi cally addressing contractual it’s backed up to the cloud, but you liabilities or regulatory investigations. need to ensure that all data on an offi ce ERISA This includes any indemnifi cation network is also encrypted. a company would make with clients Do not leave unencrypted data on LAWYERS to compensate them in the event mobile devices such as laptops, iPads, of a cyber incident or data breach. or iPhones. The theft of any of these It also covers any fi nes, penalties devices opens a fi rm up to potential LONG TERM DISABILITY, or legal expenses incurred due to a liability. LONG TERM CARE, HEALTH, regulatory investigation; Take care with passwords. Make EATING DISORDER, AND LIFE them hard to guess, but, at the same INSURANCE CLAIMS Media Liability: time, make them easy for you to This covers intellectual property remember. WE HANDLE BOTH infringements in the area of a fi rm’s For example, a May 23 anniversary ERISA & BAD FAITH advertising, specifi cally online, could become Mai523. Do not write MATTERS including social media posts, but them down, share them or use the can be negotiated to include printed same password for everything, because material as well; when a cyber thief breaks in, he will • California Federal and have the keys to your kingdom and the State Courts Errors and Omissions: pillaging begins. A reliable password In the event that a cyber breach or manager can be utilized to securely • More than 20 years attack rendered a fi rm unable to store multiple passwords so just the experience fulfi ll its contractual obligations, this password for the manager would need coverage addresses allegations of to be remembered. breach of contract or negligence, Take notice of any email anomalies. • Settlements, trials including legal defense costs or If something is off or differs from the and appeals indemnifi cation in the event a suit is norm–a different format for a vendor; a fi led against a fi rm by a client; and, link or attachment where usually there isn’t one, in a PDF fi le, for example; any Network Business Interruption: internal email message that is unusual– Referral fees as allowed This interruption addresses system raise a red fl ag and think twice before by State Bar of California failures which are not due to a clicking any links or attachments. security failure allowing a successful Client data is sensitive and highly cyber-attack. It addresses end-user confi dential. It should always be Handling matters human error, or hardware/software secured in whatever format it appears, failures, etc. The harm to a fi rm’s whether on paper or on the network, on throughout California reputation and any continuing a copy or fax machine, and particularly impact said harm has on the fi rm’s in an unattended reception area. continuing profi tability are also covered under this umbrella. Conclusion Two consultations are advised: one 818.886.2525 As always, insurance is one of with the fi rm’s IT provider to ensure that those things that one must have, but effective defenses and a reliable backup would rather not have to use. The system are in place to help prevent and time-worn adage stands: an ounce of cure an attack, and another with the prevention is worth a pound of cure. fi rm’s insurance provider to ensure that the fi rm is not holding the short end of CRITICAL DO’s and DON’Ts the stick in case a successful attack www.kantorlaw.net Adhering to some basic rules can occurs. go a long way in helping a fi rm avoid Dedicated to helping people 1 situations which can result in a claim TITLE 1.81.5. California Consumer Privacy Act of receive the insurance 2018 [1798.100 - 1798.199.100]. benefits to which they being fi led. 2 https://www.americanbar.org/groups/law_practice/ publications/techreport/2020/cybersecurity/. are entitled First, encrypt all client information. Data should automatically encrypt when

34 Valley Lawyer ■ JUNE 2021 www.sfvba.org [email protected]

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HE UNIVERSITY OF WEST LOS as oral argument judges at the annual advocate. The UWLA team also Angeles School of Law (UWLA) event. fi nished in second place.” recently hosted the 2021 Roger J. Among those judging the UWLA School of Law students Traynor Moot Court Competition–the fi rst competition was SFVBA Board of Dalia Maayah and Patricia Snyder time the event was conducted online. Trustee member Alan Eisner. were victorious in the Final Round The complex logistical planning The event “was an extraordinary of the Oral Argument competition, required a pivot to an online platform event for many reasons. The best law besting a team from Loyola Law for this 10-school, 19-judge event schools in the country competed– School. and served law students throughout Berkeley, Hastings, Loyola, McGeorge Snyder is the daughter of long- California. and others,” says Eisner. time SFVBA member, attorney Ron The Traynor event–fi rst held in 1969 Held over a two-day period, the Supancic of The Law Collective and named for the late Associate Justice competition was “a fascinating story in Woodland Hills. Both she and of the California Supreme Court–is a of David beating Goliath. Despite Maayah work full-time while attending nationally recognized appellate moot accomplished competitors from UWLA law school. court competition. Only bench offi cers these prominent schools, a student The Championship Round was and legal specialists are eligible to serve from UWLA won the award for best presided over by California Court

Michael D. White is editor of Valley Lawyer magazine. He is the author of four published books and has worked in business journalism for more than 40 years. Before joining the staff of the SFVBA, he worked as Web Content Editor for the Los Angeles County Metropolitan Transportation Authority. He can be reached at [email protected].

36 Valley Lawyer ■ JUNE 2021 www.sfvba.org of Appeal Administrative Presiding Justice Arthur Gilbert, Administrative Presiding Justice Elwood Lui, and Associate Justice Helen Bendix. The UWLA team advanced to the Final after victories in two preliminary oral argument rounds a day earlier. In the preliminary rounds, involving 26 competitors from ten California- based law schools, Snyder received the highest individual scores of any participant and was awarded the Geoffrey Wright Award for Individual Achievement in Oral Advocacy.

UWLA also received a Second Place award in the Excellence in Appellate Advocacy category for IInn 1936,1936, entrepreneurentrepreneur BobBob WianWian purchasedpurchased Bob’sBob’s Pantry,Pantry, a 10-10- outstanding overall performance sstooltool hamburgerhamburger standstand inin Glendale.Glendale. and fi nished third in the separate T Twowo yyearsears llater,ater, hhee cchangedhanged tthehe nnameame ffromrom BBob’sob’s Written Brief competition. PPantryantry ttoo BBob’sob’s BBigig BBoyoy aandnd cconvertedonverted tthehe sstandtand iintonto a ddrive-inrive-in The victory marked the second rrestaurant,estaurant, oofferingffering a ddouble-deckouble-deck hhamburger,amburger, FFrenchrench ffriesries aandnd time in the last four years that a sshakeshakes “so“so thickthick youyou cancan eateat themthem withwith a spoon,”spoon,” allall forfor 6060 cents.cents. UWLA moot court team under O Onene ooff ttwowo BBob’sob’s iinn tthehe VValley,alley, tthehe rrestaurantestaurant oonn the direction of Professor David RRiversideiverside DDriverive iinn BBurbankurbank iiss tthehe ooldestldest rremainingemaining BBob’sob’s Glassman has won the Traynor. BBigig BBoyoy iinn tthehe UUnitednited SStates.tates. BBuiltuilt iinn 11949,949, iitsts uuniquenique 11940s940s In 2020, Professor Glassman’s MModerneoderne aarchitecturalrchitectural ddesignesign aandnd iitsts iiconicconic ccommunityommunity sstatustatus team won the Best Respondent’s lleded ttoo tthehe ssiteite bbeingeing ddesignatedesignated a CCaliforniaalifornia PPointoint ooff HHistoricalistorical Brief award. His teams have also IInterestnterest inin 1993.1993. prevailed in several other statewide O Overver tthehe yyears,ears, tthehe BBurbankurbank BBob’sob’s hhasas bbeeneen vvisitedisited bbyy and national competitions. ccountlessountless eentertainmentntertainment iindustryndustry nnotables,otables, iincludingncluding BBobob HHope,ope, The final round of the JJonathanonathan WWinters,inters, aandnd TThehe BBeatles,eatles, wwhoho ddinedined aatt tthehe BBurbankurbank competition can be viewed on the llocationocation duringduring theirtheir 19651965 U.S.U.S. tour.tour. school’s YouTube channel at: https://youtu.be/clxF_jY1h70.

www.sfvba.org JUNE 2021 ■ Valley Lawyer 37 By Erin Joyce Flat Fees: FFollowollow tthehe Rules,Rules, NNoo PProblemroblem

This article was recently published in Vol 7., No. 1 of Attorney at Law magazine and is being reprinted in Valley Lawyer with permission and full attribution.

ITH THE ADOPTION OF THE 1.15, which covers safekeeping funds into distinct segments or phases, such new Rules of Professional and property of clients and other as an immigration case which clearly Conduct in November 2018, persons in almost all cases. The only delineates the process for obtaining California joined the vast majority of carve-out for requiring advanced the visa, including the fi ling of the jurisdictions that require attorneys to fees to be deposited into a CTA is petition, the fi ling of the immigrant visa deposit all client monies, including for a fl at fee, and then only in specifi c application and the representation at advanced attorney fees, into a client trust circumstances. the Consulate interview. account. Attorneys who routinely perform Instead of one fee agreement Former Rule 4-100 only required legal work on a fi xed-fee or fl at-fee stating a fl at fee for all these services, deposits for costs to be deposited into a basis need to pay special attention to the attorney can break down each CTA. Rule 1.15(b) so they do not run afoul segment and charge a separate fl at However, advanced fees did not of the new trust accounting rules. fee for each service. have to be deposited into a CTA. Many Flat fees are appropriate in The fi rst important point for attorneys did not routinely deposit relatively simple matters such as a attorneys accepting fl at fees under the advanced fees into a CTA. non-contested divorce or writing a current Rules of Professional Conduct Now advanced fees need to be basic trust. is that all fl at-fee agreements should deposited into a CTA pursuant to Rule They can also work on be in writing, no matter the amount of more complex cases when the the fl at fee, since the attorney has to representation can be broken down disclose in writing that the client could

Attorney Erin Joyce has extensive experience in State Bar investigations and disciplinary proceedings, plus over twenty-fi ve years of civil litigation practice. She is based in Pasadena and can be reached at [email protected].

38 Valley Lawyer ■ JUNE 2021 www.sfvba.org require the fl at fee to be deposited If the attorney has not fully into a CTA and that the client is performed prior to termination, it is entitled to a refund of any part of the expected that the attorney has not fully fl at fee that has not been earned. earned the fl at fee. In determining the The other important provision value of the attorney’s services, the is that the attorney should keep time spent by the attorney, how far accurate time records on all fl at-fee along the work is on the client’s matter, Follow the Rules, cases since the attorney must be and how much is left to be completed able to determine what part of the fl at to fully perform the contracted work are No Problem fee has been earned if the attorney all important factors to consider. is terminated prior to completing the For instance, an attorney who legal services. A fl at fee is not earned brought a criminal case all the way to a until full performance. preliminary hearing who is terminated Once the attorney has fully the night before is likely to be able to performed, the attorney has earned show the attorney fully earned the fl at only the fl at fee, not the value of all the fee based on the hours worked and time invested in the case.1 how far along the attorney advanced Until the attorney has fully the client’s matter. performed on a fl at-fee matter, the Conversely, an attorney who attorney is only entitled to quantum spent many hours completing a meruit, or the reasonable value of trademark application who did not yet the services, and must provide an submit the application to the Patent accounting on demand.2 and Trademark Offi ce will likely owe Time records are invaluable to a refund if the fl at-fee agreement proving up quantum meruit, however, provided for the fi ling of the trademark for a fl at-fee arrangement, the time application and the response to the records won’t be the fi nal word on fi rst offi ce action, based on how far the the reasonable value of the attorney’s representation had advanced at the services even if the work performed time of termination. on an hourly basis exceeded the fl at As a rule, an attorney who accepts fee. fl at fees for legal services needs to This is because the client did comply with Rule 1.15(b) to avoid not enter into an hourly arrangement potential trust accounting violations. with the attorney, but an agreement 1 See Reynolds v. Sorosis Fruit Co. (1901) 133 Cal. for the attorney to fully perform the 625, 628. 2 contracted services for a certain fl at In the Matter of Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 188-189. fee.

lewitthackman.com (818) 990-2120 MONDAY, JUNE 7 ZOOM MEETING 5:30 PM VBN is dedicated to offering organized, high quality networking for SFVBA members. Contact [email protected] for more information.

www.sfvba.org JUNE 2021 ■ Valley Lawyer 39 The Attorney Referral Service of the SFVBA is a valuable service, one that operates for the direct purpose of referring potential clients to qualified attorneys. It also pays dividends to the attorneys involved. Many of the cases referred by the ARS earn significant fees for panel attorneys.

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40 Valley Lawyer ■ JUNE 2021 www.sfvba.org EXECUTIVE DIRECTOR’S DESK AND ATTORNEY REFERRAL SERVICE

Meet Member ROSIE SOTO MIGUEL VILLATORO COHEN ARS Associate Director and Client Services SFVBA Executive of Public Services Coordinator Director

Meydell Castro [email protected] [email protected]

LEASE WELCOME OUR NEW SFVBA MEMBER of young professionals in the Valley to support high school and Client Services Coordinator and Fee Arbitration students with the college application process and beyond. Administrator, Meydell Castro. Her goal is to connect local high school students to the many Meydell was born in Matagalpa, Nicaragua. Her family resources and networks available to them. migrated to the United States when she was just seven years In addition to her duties as a Service Consultant old and, since then, she has been a life-long San Fernando Coordinator and Arbitration Fee Administrator at SFVBA, Valley resident. Meydell will assist as an Attorney Referral Service consultant She was raised in Panorama where she can direct potential clients to the City, graduated from Panorama High great attorneys on our panel. She believes School, attended Valley Community the skills she gained throughout her six years College and transferred to California working in various customer service-oriented State University, Northridge to positions will help her “effectively assist and continue her studies. She recently direct” prospective clients. obtained a Bachelor’s degree in “I am very grateful and excited I have Political Science in May of 2021. the opportunity to work with the Bar because “It was very diffi cult to navigate it has so many incredible resources available the university system as a fi rst- that can really help residents in the San generation immigrant, but thanks to Fernando Valley.” the guidance and support from my In the short time Meydell has been at the community, I can now proudly say I’m San Fernando Valley Bar Association, she has offi cially the fi rst college graduate in been able to assist several clients in obtaining my family!” the legal counsel they are seeking. In her previous role as an “Sometimes there are situations where emergency dispatcher, she gained clients just need general information, and I experience assisting hundreds of want to make sure I provide them with every clients from all over the resource available,” she says. country undergoing stressful, “I am very grateful and excited Meydell fi rst became interested sometimes even life- I have the opportunity to work in the legal fi eld through her Political threatening situations. with the Bar because it has so many Science studies and is now very “My experience as passionate about the role of law in a dispatcher during the incredible resources available that society. pandemic really solidifi ed can really help residents in Her goal is to eventually attend my interest in public the San Fernando Valley.” law school, focusing on immigration service,” says Meydell. law and its intersection with the “It really exposed me to the harsh circumstances so criminal justice system. many people are living through, and it made me want to help “I’ve witnessed fi rst-hand the types of issues that can in any way that I can, even if that help simply means pointing arise when people don’t know their rights or what legal someone in the right direction.” recourses they have in certain situations,” says Meydell. In her spare time, she enjoys volunteer work and is “I want to become an attorney so I can help people from constantly looking for ways to get involved in her community. non-traditional backgrounds and expand access to the legal She is currently working to organize a mentorship program system.” www.sfvba.org JUNE 2021 ■ Valley Lawyer 41 Valley Community Legal Foundation OF THE SAN FERNANDO VALLEY BAR ASSOCIATION

CHARITABLE ARM OF THE SFVBA SUPPORTING LEGAL NEEDS OF VALLEY YOUTH, DOMESTIC VIOLENCE VICTIMS, AND VETERANS WORKING WITH JUDGES AND OTHERS IN THE VALLEY LEGAL COMMUNITY SPONSORING TEEN COURT CLUBS AND LAW MAGNETS AT 9 VALLEY HIGH SCHOOLS PROVIDING EDUCATIONAL GRANTS FOR LEGAL CAREERS SUPPORTING LAW-RELATED PROJECTS IN THE VALLEY ASSISTING VALLEY RESIDENTS IN NEED

VCLF SUPPORTS THE FOLLOWING ORGANIZATIONS

OF SAN FERNANDO VALLEY

RECENT SCHOLARSHIP RECIPIENTS INCLUDE STUDENTS AT

To donate to the VCLF or to learn more, visit www.thevclf.org and help us make a difference in our community

42 Valley Lawyer ■ JUNE 2021 www.sfvba.org VALLEY COMMUNITY LEGAL FOUNDATION

JUDGE VIRGINIA KEENY VCLF Vice President Valley Seniors Benefi t Scholarships

[email protected]

HIS YEAR, THE VALLEY COMMUNITY LEGAL Mock Trial Championship. She also won high honors for Foundation (VCLF) presents $7,500 in scholarships to Speech and Debate in statewide competitions and a First an extraordinary group of talented and committed high Place Award for negotiation skills at Loyola Law School’s school students in the San Fernando Valley. Confl ict Resolution Training Program in 2019. One is a student leader in March for Our Lives, a national Angela placed 7th statewide for her original advocacy organization dedicated to ending gun violence. Another speech on the working conditions facing the immigrant works with the Koreatown Immigrant Workers Alliance to community and was a semi-fi nalist in the 2020 Los Angeles present Know Your Rights workshops to recent immigrant County Mock Trial championship. She hopes to one day communities, while still another has organized a youth group become an immigration attorney and advocate. at her church and, with the help of social media and a local VCLF also recognized Naydelin Chimil Tico (James grocery store, distributes food and clothing to homeless Monroe High School) and Reese Coblentz (John Burroughs people in the community. High School) for their Outstanding Achievement and Service All of these extraordinary young people were honored with $1,000 scholarships. recently by the VCLF as part of our 2021 Scholarship Reese led campus protests and vigils against gun Program, which recognizes exemplary Valley high school violence and served as a local food drive coordinator, students who have shown a commitment to while maintaining a high GPA and excelling in pursuing careers in law or law enforcement. volleyball and choir. The VCLF presented its top honor Naydelin developed a passionate to Francis Arellano, a senior at James Despite these obstacles, interest in environmental law after Monroe High School’s Law and working on beautifi cation projects in Government Magnet program. all of these students Pacoima and addressing homelessness Francis was awarded the $2,500 persevered to become issues with her church. As president of Student Excellence Award in recognition of honors students her school’s Key Club, she was actively her extraordinary achievements. Not only did involved in motivating and organizing her Francis maintain a 4.0 grade point average, and leaders.” fellow students during the COVID-19 pandemic. but she won high honors at the California High Each of these students demonstrated School Speech Association Tournament earlier this year for resourcefulness, commitment and maturity far beyond their her original advocacy piece, The Scarlet E, which focused on years, often in the face of great adversity. Most come from the pandemic eviction crisis and its impact on undocumented low-income or fi rst-generation families who have struggled people. She already has considerable experience as with economic scarcity and language barriers. a community organizer and immigration rights activist, One of our scholarship recipients recalls seeing her developed through her work with the Oaxacan, Korean and father, who was working as a dishwasher, come home from Bangladeshi communities in Los Angeles’ Koreatown district. work with burns on his arms; another experienced domestic A fi rst-generation Zapotec-American, Francis will attend violence early in her life, which tore apart her family; another Bryn Mawr College in the fall with the hope of one day had to help her mother sell food on the streets during the becoming an attorney focusing on immigration, labor and pandemic in order to survive. housing law. Despite these obstacles, all of these students persevered Two other seniors from the Monroe Law and Government to become honors students and leaders. Magnet–Sophia Carrillo and Angela Muralles–received As the charitable arm of the San Fernando Bar $1,500 Student Distinction Awards. Association, the VCLF proudly recognizes these fi ve high As captain of the school’s Mock Trial Team, Sophia led school seniors for their signifi cant personal achievements and Monroe’s team to victory in the 2019 Los Angeles County looks forward to their future contributions to our community. www.sfvba.org JUNE 2021 ■ Valley Lawyer 43 A WORLD OF DIFFERENCE

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44 Valley Lawyer ■ JUNE 2021 www.sfvba.org NEIGHBORHOOD LEGAL SERVICES OF LOS ANGELES COUNTY

MINYONG LEE NLSLA Senior Attorney A Tragically Common Story

[email protected]

HE COVID-19 PANDEMIC Family Code Section 6320 now attorneys. This ensured that she received brought with it a terrifying rise explicitly states that abuse, considered the representation and protections she in rates of domestic violence in restraining order hearings, includes needed and securing full custody of her across the globe. But much like rates of “compelling the other party by force, son. They also made sure that she was infection, illness, and death, the impact threat of force, or intimidation, including able to move back into her house, and has of increased domestic violence has not threats based on actual or suspected the benefi ts she needs to get her through exacted an equal toll. immigration status, to engage in conduct until she can fi nd employment. She is also A study done by the Center for from which the other party has a right currently in the process of applying for a Survivor Advocacy and Justice shows that to abstain or to abstain from conduct special visa for victims of domestic abuse. rates of abuse increase dramatically—to in which the other party has a right to NLSLA provides more than legal 50 percent and higher—for those engage.” assistance and representation—our marginalized by race, ethnicity, sexual advocates validate our clients’ experiences. orientation, gender identity, citizenship We know that a restraining order is not status, and cognitive and physical ability. simply an order written on paper, but often At Neighborhood Legal Services of our clients’ fi rst time feeling seen and heard Los Angeles County (NLSLA), we see by those in authority. evidence of this unequal toll in the lives We stand with our clients as they of the clients seeking our help. receive affi rmation that their lives are A client named Valerie (a valuable enough to break free from a cycle pseudonym) recently sought assistance of violence and fear. with obtaining a restraining order against NLSLA would greatly appreciate her partner, a U.S. citizen who routinely partnering with attorneys and volunteers used Valerie’s immigration status to We fi nd this explicit statutory who are interested in helping women like coerce her to stay quiet as he physically, language to be a useful tool in cases Valerie feel empowered and begin to verbally, and sexually assaulted her—often where this type of abuse is being used, heal. in front of their 7-year-old son. especially during the pandemic. Information on how you can donate After her husband lost his job as a At her court hearings, Valarie was or volunteer can be found on our website, result of the pandemic, he began drinking represented by NLSLA, trauma-informed nlsla.org. heavily, spending all his time at home. Not surprisingly, the abuse escalated, as did WORKERS’ COMPENSATION STATE CERTIFIED SPECIALIST his threats to call law enforcement and have her detained and separated from her son if she dared to speak up. Valerie’s story is horrifi c, but sadly, it is not unique. The pandemic and subsequent economic shutdown have compounded the stressors that can lead to violence, William J. Kropach William H. Kropach [email protected] Over 40 years combined experience. [email protected] and that violence has had an especially Chairman Workers’ devastating impact on undocumented Comp Section REFERRAL FEES PAID—CALL women, whose fear of deportation and SFVBA 1987-2000 818.609.7005 separation from their children have kept Volunteer of the Year SFVBA 2003 www.williamkropach.com them silent even as their abuse intensifi es. www.sfvba.org JUNE 2021 ■ Valley Lawyer 45 CLASSIFIEDS SFVBA Inclusion & Diversity ATTORNEY-TO-ATTORNEY and Membership & REFERRALS SFVBA STATE BAR CERTIFIED Marketing Committees WORKERS COMP SPECIALIST Over 30 years experience-quality MCLE practice. 20 percent referral fee paid to DDINNERINNER ATAT attorneys per State Bar rules. Goodchild & Duffy, PLC. (818) 380-1600. MMYY PPLACELACE Seminars A member benefi t to help SPACE AVAILABLE members get to know each ENCINO other in an intimate setting Encino Office in Class A Bldg. Appx. Audio 14’x16’ office w/floor to ceiling windows and spur referrals. & 180° view of Valley in shared 1,100 ft 10th Fl Suite w/room for asst. Call COULDN’T Richard (818) 788-8900. ATTEND AN SHERMAN OAKS SUBLEASE IMPORTANT Large executive office (22’x18’) with views of hills (btw. Woodman and SFVBA Hazeltine). $950/month. Secretary space SEMINAR? available. Contact David (818) 907-9688.

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46 Valley Lawyer ■ JUNE 2021 www.sfvba.org Alpert Barr & Grant APLC Brot • Gross • Fishbein • LLP Brutzkus Gubner Rozansky Seror Weber LLP G&B Law, LLP Kantor & Kantor LLP Kraft Miles ALC Law Offces of Gerald L. Marcus Lewitt Hackman Shapiro Marshall & Harlan ALC Neighborhood Legal Services of Los Angeles County Nemecek & Cole Oldman Cooley Sallus Birnberg & Coleman Stone | Dean The Reape-Rickett Law Firm

Contact SFVBA Executive Director Rosie Soto Cohen at (818) 227-0497 or [email protected] to sign up your fi rm today! lewitthackman.com 818.990.2120