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vvveeevevvvevevevvvev rdictrdictrdictvvveeevevvvevevevvvev rdictrdictrdictassociation of southern california defense counsel Volume 2 2015 SummerReadingIssue Volume 2 2015 verdict 1 verdictthe association of southern california defense counsel 2520 venture oaks way suite 150 sacramento ca 95833 Asbestos 9 Whistleblower 15 Insurance 23 JDA 17 features 9 Asbestos Litigation New Order on Disclosure of Bankruptcy Filings Creates New Transparency by Stephen J. Kelley 15 Advising Clients On the Best Way to Navigate Whistleblower Issues by Laura Reathaford 17 Reap the Benefits of the Joint Defense Agreement With the Right Counsel in the Right Case by Wendy Wilcox and Glenn Barger 19 Around the Counties by Patrick J. Kearns 23 Why Did It Take Adjusting 175 Claims Before the Insurer Learned It was Deceived by Barry Zalma 25 Ninth Circuit Upholds Ban on Unattended Private Structures in City Parks by Karen S. Duryea 27 In Defense of the Public a Message from the Public Entities Committee by Robert L. Kaufman 28 SUMMER READING Run Brother Run by Robert L. Kaufman The Onion Field by Wendy L. Wilcox Class Action by Ninos Saroukhanioff departments 2 Index to Advertisers 3 Presidents Message by Michael Schonbuch 5 Capitol Comment by Michael D. Belote 6 New Members 7 What We Do by Patrick A. Long 31 Defense Successes 32 Amicus Committee Report 36 Executive Committee Board of Directors 2 verdict Volume 2 2015 verdict2520 venture oaks way suite 150 sacramento ca 95833 staff editor Lisa Perrochet executive director Jennifer Blevins art director John Berkowitz contributors Michael D. Belote Patrick A. Long printing Sig-1 Printing association of southern california defense counsel officers president Michael Schonbuch president-elect Glenn T. Barger vice president Clark R. Hudson secretary-treasurer Christopher E. Faenza board of directors Michael A. Colton Jean Daly Julianne DeMarco Peter S. Doody Thomas P. Feher Patrick J. Kearns Anthony Kohrs Edward R. Leonard Diana P. Lytel Lisa J. McMains Gary T. Montgomery Stephen C. Pasarow Lisa Perrochet Lawrence R. Ramsey Ninos P. Saroukhanioff Eric Schwettmann Patrick Stockalper Jeffrey A. Walker For advertising information contact the ASCDC below executive office 2520 Venture Oaks Way Suite 150 Sacramento CA 95833 800-564-6791 ascdccamgmt.com www.ascdc.org Verdict Magazine is published for members of The Association of Southern California Defense Counsel ASCDC. The opinions and advice in Verdict Magazine are those of the submitting authors and are not necessarily those of ASCDC. All rights are reserved in all countries. No part of this magazine may be reproduced in any form without written consent from Verdict Magazine. Editorial production and advertising offices at Verdict Magazine 2520 Venture Oaks Way Suite 150 Sacramento CA 95833. Telephone 800 564-6791. Return postage must accompany any unsolicited material if it is to be returned. Verdict Magazine assumes no responsibility for such materials. index to advertisers ADR Services Inc. 13 Arrowhead Evaluation Services 37 Biomechanical Analysis 32 Bonne Bridges 26 Executive Presentations 14 Fields ADR 31 First Mediation Corp. 27 Forensis Group 4 Jack Daniels 11 Judicate West 21 KGA Inc. 33 Law Offices of Victoria Lindenauer 10 Timothy McGonigle 22 Momentum Engineering 20 ProConsul Inc. Inside Cover Volume 2 2015 verdict 3 Michael Schonbuch ASCDC 2015 President presidents message Ilead a pretty busy schedule. Up at 4 am seven days a week followed by two hours of work a two hour hard core workout at the gym and then comes a full day of work as a lawyer. Therefore I rarely have time to catch a movie and when I do it is usually a Netflix over the weekend. Accordingly I am always two to three months behind everyone else when it comes to conversations on the latest film. With that in mind I just recently watched Kingsman The Secret Service. One of the movies subtle themes is near and dear to my heart and directly applies to our work as officers of the court manners maketh man. The Kingsmen are a group of elite British agents who are lethal trained killers charged with the responsibility of protecting truth justice and country. Yet they are extremely polite respectful and well mannered carrying out their responsibilities with style class and grace. If we can just set aside the whole killing part for the time being it is my belief that we lawyers should be acting in the same manner. Although we talk about civility and professionalism all of the time I always believe there is room for improvement and that we should all strive to be Kingsmen. When we discuss civility and professionalism we focus upon our relationships with opposing counsel granting extensions getting along working together and generally trying not to engage in unnecessary disputes. However politeness and manners go well beyond these issues. On a daily basis we are interacting with court reporters bailiffs parking attendants court clerks waitstaff during our business and trial lunches as well as our jury and our Judges. Politeness and manners should be extended throughout all of our daily interactions no matter how attenuated the relationship. This is a practice I have always followed. Over the years I have watched other attorneys walking on eggshells while addressing the court but thereafter speaking harshly to a court staffer. I have seen attorneys snapping at waiters and waitresses during lunch breaks from trial. I have even witnessed some counsel being rude to janitors as they are cleaning a restroom and apparently in the way during the exact moment that a trial is taking the morning or afternoon break. I am always astonished when I see such behavior but the last thing I want to do is go and get in the face of someone acting in such a manner so I just let it go. Recently I completed a rather lengthy trial and my opposing counsel was rude to the court staff kept violating court orders right in front of the jury never held the door for anyone failed to stand when the jury arrived never asked permission to move around the court or relocate the podium and eventually started having open court disputes with the judge in front of the jury. When the trial was over I went to speak to the jury to find out what they felt was important in their deliberation process. This group of jurors spent 30 minutes discussing the rudeness of opposing counsel and how offended they were by his behavior in contrast to how polite my associate and I were throughout the trial. After months of litigation dozens of expert depositions hundreds of hours in trial preparation and hundreds of thousands of dollars spent trying the case the jurys first comments were focused upon politeness and manners. I prefer to be polite and well-mannered. After all of these years I have learned that there is another benefit as well. You can be a trained killer and at the same time handle your assignments with class style grace politeness and manners. Therefore in conclusion I submit Schonbuchs Rules Of Killing With Kindness 1 Be polite to everyone from the valet parking attendant right up to the Judge. 2 Always say please and thank you no matter what the circumstances. 3 Always knock on the Judges chamber door and any door for that matter before entering. 4 Always let opposing counsel get to side bar first. 5 Always stand when the jury enters and exits. 6 Always introduce yourself to all members of the court staff before trial begins and say hello each and every morning no matter how busy you are getting ready for the day. 7 Always ask for permission to move the podium or walk around the courtroom. 8 Even if you are running late be kind to the officers working at the security line. 9 Never be late-anywhere. 10 Always shake opposing counsels hand-win lose or draw. 11 Always hold the door entering and exiting no matter who is approaching especially if it is the opposing party or witness. 12 Always remember It is not your courtroom. It is theirs. They work there every day and you are just visiting. Clean up after yourself push your chairs in when leaving say good night every day and maybe just maybe you will be welcomed back the next time. 13 Remember Manners Maketh Man. Manners Maketh Man 4 verdict Volume 2 2015 Volume 2 2015 verdict 5 Michael D. Belote Legislative Advocate California Defense Counsel capitol comment Big Issues in Civil Lawyers accustomed to the gradual development of case law often are surprised by how quickly significant changes in the law can be made by the legislature. Frequently the entire process requires months not years and bills introduced in January can be enacted by August signed in September and effective on January 1 of the following year. As Sacramento approaches the end of the 2015 legislative year important issues of civil procedure are being debated and the California Defense Counsel is front and center in the discussions. Demurrers expedited jury trials summary judgment and partial summary adjudication are all at issue in the California Assembly and Senate. Stakeholders involved in the discussions include such diverse organizations as the Consumer Attorneys of California California Judges Association Judicial Council of California California Chamber of Commerce Civil Justice Association of California and many insurer organizations. Aligning the interests and views of these groups which are often opposed is the secret of successful legislation. Demurrers are the subject of SB 383 Wieckowski. Responding to concerns of the judiciary that demurrers are consuming large percentages of the law and motion calendar in some counties but mindful of the defense view that demurrers represent a critical tool in refining causes of action SB 383 proposes a meet and confer obligation prior to demurrer. But the meat of the meet and confer is in the details which are so important. When and how is the meet and confer to be conducted What happens if lawyers are not able to talk or if a lawyer is not conferring in good faith Are there specific cases where meet and confer is not appropriate Should there be a limit on the number of times a complaint should be amended absent some showing of good cause In addition to conditioning demurrers on meet and confer SB 383 requires plaintiffs to amend complaints by the date that the opposition to the demurrer would otherwise be due to eliminate the circumstance where complaints are amended just prior to demurrer hearings mooting out the preparations of judges and court staff. As this column is written the Chamber of Commerce and the Civil Justice Association are opposed to SB 383 believing that the meet and confer will cause unproductive delay but discussions with these groups are continuing. Expedited jury trials are addressed in AB 555 Alejo. The law creating the current voluntary EJT process will sunset at the end of this year and the discussion has been how to more effectively incentivize the use of the expedited process in appropriate cases. After much discussion AB 555 has been amended to make the EJT process mandatory for the first time for limited jurisdiction cases. The bill gives lawyers the ability to unilaterally opt-out of EJT for cases with certain characteristics however including a possibility of punitive damages an allegation of intentional conduct an insurer reservation of rights and more. A catch-all exemption is also provided where the judge determines that EJT is not appropriate. While the current voluntary program will continue where lawyers agree the mandatory limited jurisdiction program will provide for a slightly longer amount of time to present cases and a right of appeal to the appellate division of the superior court. Various amendments to AB 555 have been taken to respond to concerns of insurers and again discussions over the details of the bill are ongoing. For summary judgment SB 470 Jackson clarifies that judges need not rule on nonmaterial objections to evidence. CDC and particularly ASCDCs own Bob Olson has been quite involved with the language to insure that objections not ruled upon are preserved on appeal. This bill currently faces no opposition and it will soon be sent to the Governor for signature. Finally AB 1141 Chau reinstates the ability of parties to stipulate to summary adjudication of issues if judges determine that ruling on the issue will increase the chances of settlement or shorten the resulting trial. The bill also amends Code of Civil Procedure Section 998 to provide both plaintiffs and defense with a parallel ability to obtain post-offer costs. Governor Brown will act by mid-October on all bills sent to him this year. 2015 may well go down as one of the most significant in many years in terms of the number and significance of bills relating to civil procedure. 6 verdict Volume 2 2015 new members may august Boyce Schaeffer Mainieri LLP Robyn Weiss Sponsoring Member James C. Schaeer Briskin Latzanich Pene Lindsay P. Lang Sponsoring Member Katherine Pene Carroll Kelly Trotter Franzen McKenna Peabody Patrick Goethals Erica De La Sierra Tyler Kelley Natasha L. Mosley Sponsoring Member David Pruett Chapman Glucksman Dean Roeb Barger Michelle Ellis Katherine Frank Sponsoring Member Glenn Barger Clausen Miller Meredith Stewart Collins Collins Muir Stewart Weiss B. Hamid Kim A. Cruz Sponsoring Member Peter Doody Daniels Fine Israel Schonbuch Lebovits Ashley Arnett Sponsoring Member Phillip Baker Dwyer Daly Brotzen Bruno LLP Chantalle Zakarian Early Maslach Sepe Karen Bernard Matthew J. Saunders Sponsoring Member John Delis Fisher Phillips LLP Karl R. Lindegren Sponsoring Member Linda Miller Savitt Foley Mansfield Melanie A. Ayerh Greines Martin Stein Richland Jonathan Eisenman Sponsoring Member Robert Olson Hosp Gilbert Bergsten John D. Stanley Sponsoring Member Robert Bergsten Kramer Deboer Keane Krista R. Hemming LaFollette Johnson DeHaas Fesler Ames Gillian N. Pluma Sponsoring Member Louis H. DeHaas Law Office of Christopher Ramsey Christopher Ramsey Law Offices of Thomas J. Feeley PC Thomas Feeley Lynberg Watkins Jesse K. Cox Sponsoring Member Philip Lo Maranga Morgenstern Dana Enyart Mark R. Weiner Associates Mark R. Weiner Messina Lalafarian Mendel Ryan William P. Ryan OMelveny Myers LLP Molly Lens Office of the Attorney General Paul Epstein Office of William I. Chopak William I. Chopak Phillip Hack Associates APC Phillip L. Hack Sponsoring Member David Pruett Raffalow Rhoads Bretoi Jerey S. Bretoi Southern California Gas Co. Office of General Counsel Marlin Howes Sponsoring Member Steven Fleischman Walker Mann Mojan Anari Samantha Hart Sponsoring Member Jeery Walker Volume 2 2015 verdict 7 Patrick A. Long what we do Some among our membership apparently love the concept of marketing their firms services. Others while conceding the importance of marketing would rather spend their time preparing opposition to motions for sanctions for failing to appropriately respond to discovery requests. Certainly there are many many different methods of marketing legal services and these methods change and adapt to the times conditions technology recipients and the nature of the services being offered. Id like to briefly touch on a specific marketing methodology which fortunately no longer exists. At least I dont think it does. A week ago I ran into an old friend. I use the term old in the strictest sense. This fellow has an even lower bar number than I do and had been practicing for several years before I began taking my first uncertain steps as a baby lawyer. Folks were talking more than forty years ago. My friend brought up a topic that I hadnt much thought about for many years a marketing technique used those many years ago which fortunately dropped by the wayside a long way back. The older members of our association will probably recall the many different marketing efforts our firms used in those long ago days. In those days we were known as insurance defense lawyers and of course we were. We still are today at least to a certain extent but with the passage of time much of our practice has transitioned to some percentage of our work involving insurance defense but also a great deal of work for many ASCDC firms now includes non- insurance related matters such as business litigation intellectual property ADA issues employment matters and transactional tasks. Forty years ago almost all our membership worked exclusively in insurance defense. My friend laughingly recalled a specific old-time marketing technique that we might describe as the extended lunch. Well yes I do recall taking my first lawyerly baby steps and being invited by senior partners to some Friday lunches with local claims folks. These lunches would often extend far into the afternoon and involved far more cocktails than was appropriate. My friend recalled that each insurance defense firm seemed to have a favorite lunch joint where these extended lunches would take place. I myself remembered a firm where I had a couple of friends and that firm had an account at a well-known hangout where such lunches took place. I was grateful to this firm because they wouldnt let me purchase a drink in their hangout it was always on their tab. For a baby lawyer on a starting salary with young kids at home this was a Godsend for which I was grateful. Those of us who were there forty or so years ago can certainly be happy that the extended lunches eventually fell out of favor. Certainly we all lunch with clients occasionally but I suspect that continuing to drink into the afternoon and sometimes never even returning to work essentially never takes places modernly. Not only is it a bad practice in and of itself but over the years many if not most claim departments are primarily female and many defense firms now have a large female contingent and obviously our sisters practice much better judgment than many of us did in the old days. During those olden days I fortunately never heard that any of our membership became involved in an accident or other untoward encounter but still I am grateful that such marketing techniques faded away long ago. Perhaps one of you might consider an article for Verdict on the evolution of marketing techniques over the years since ASCDC was founded in 1960 until today. Technology has obviously played a large part in marketing during the last twenty years but Ive heard it said that being face to face with a prospective client serves as the bedrock of the best marketing effort. Fortunately there are numerous ways to achieve personal interaction including CLE programs bar organization activities office visits and yes the occasional lunch when permitted by the carrier. And as I reflect on whether or not you might be interested in doing a Verdict article those with successful marketing techniques might not be inclined to share that success with the world. Lets have lunch sometime soon Patrick A. Long palongldlawyers.com Marketing Advertising Soliciting Call It What You Will Just Send the Work 8 verdict Volume 2 2015 Volume 2 2015 verdict 9 continued on page 10 scope of defendants to include product manufacturers that were still solvent but that made products containing only minimal amounts of less harmful forms of asbestos as well as premises owners where asbestos-containing products may have been used and employers whose workers used such products. Such claims are frequently asserted by plaintiffs who never used the defendant manufacturers products but were only bystanders to use by others or who never set foot on the defendants premises but claim secondary exposure through fibers brought home on the clothing of family members. For many years plaintiffs pursued recovery on parallel tracks obtaining substantial sums from the trusts based on their own more significant direct exposures while also seeking jury verdicts from solvent defendants for the same injuries. This was in part possible because claims against the trusts were held confidential allowing plaintiffs not only to conceal the funds they received but also to conceal contentions tailored to trigger trust payments while making flatly contradictory exposure source allegations in civil suits. However recent challenges by defendants have resulted in court decisions that have added transparency to the bankruptcy claim process to the benefit of companies that are currently defendants in asbestos litigation. For matters pending in Southern California defendants received such a favorable ruling on April 7 2015 when Judge Emilie H. Elias of the Los Angeles County Superior Court issued an order directing disclosure of bankruptcy trust claims information for plaintiffs in Los Angeles Orange and San Diego counties. F or over 40 years courts nationwide have addressed claims for compensation by individuals and families alleging exposure and damages resulting from asbestos. In the 1970s to mid-1980s the prime targets for this litigation were companies involved with the mining and processing of asbestos and manufacturers of insulation products that predominantly contained amphibole forms of asbestos. The volume of cases led to bankruptcy filings for the majority of these companies. Trust money was set aside by the bankruptcy courts. While plaintiffs lawyers continued to pursue recovery from the trusts they also broadened their ASBESTOS LITIGATION New Order on Disclosure of Bankruptcy Filings Creates New Transparency by Stephen J. Kelley 10 verdict Volume 2 2015 Asbestos continued from page 9 continued on page 11 This article traces the history of asbestos litigation and places into context the significance of the order issued by Judge Elias and jurists in other venues requiring transparency for bankruptcy trust claims. On September 10 1973 the United States Court of Appeals for the Fifth Circuit in New Orleans issued its landmark decision in Borel v. Fibreboard Paper Products 5th Cir. 1973 493 F.2d 1076 affirming a judgment based on a verdict of strict liability against asbestos manufacturers. It has been said that the Borel decision triggered the greatest avalanche of toxic-tort litigation in the history of American jurisprudence. It is estimated that over 50000 asbestos cases are filed each year. On August 26 1982 the Manville Corporation formerly Johns-Manville Corporation filed a petition for relief under Chapter 11 of the Bankruptcy Reform Act of 1978 11 U.S.C. 1101 et seq. 1982. At the time Manville was one of the healthiest companies in America and was listed in the Fortune 500. Arising out of that bankruptcy was the creation of the first asbestos personal injury trust for the payment of asbestos claimants who allege injuries from exposure to Manville products. The trust was funded by a majority of Manvilles stock and after confirmation by the Court the trust became the only recourse for asbestos claimants for claims against Manville. For many years the Manville bankruptcy and trust creation became the model other asbestos product manufacturers followed when they were forced to seek Chapter 11 relief due to asbestos claims. In 1994 Congress enacted section 524g of the United States Bankruptcy Code authorizing the establishment and funding of a trust to pay present and future asbestos exposure claims. 11 U.S.C. section 524g. Pursuant to section 524g upon emerging from bankruptcy all liabilities for asbestos exposure against the bankrupt entity are assigned to the newly created trust and all asbestos-related liability is discharged. Currently there are over 60 such trusts. These trusts pay billions of dollars to asbestos claimants each year. Many of those claimants also sue solvent defendants in the tort system. A 2011 Rand Corporation study examined in part the information link between the tort and trust systems related to filing disclosure and timing of trust claims for six states including California. Dixon Lloyd and Geoffrey McGovern 2011 Asbestos Bankruptcy Trusts and Tort Compensation Santa Monica CA RAND Corporation www.rand.orgpubsmonographsMG1104. The study found that many courts had begun requiring plaintiffs who had filed trust claims to disclose at the least the amount of any payments to defendants whom those plaintiffs were suing. Accordingly defense attorneys interviewed for the study reported their understanding that plaintiffs often waited to file trust claims until after settlement or entry of judgment in the tort case opening the possibility for compensation above the amount found by the jury to have been suffered. The study also reported that in the view of most defense attorneys plaintiffs attorneys controlled the testimony provided by the plaintiffs and coached plaintiffs not to mention the products of bankrupt firms. This impeded Volume 2 2015 verdict 11 Asbestos continued from page 10 the defendants ability to assign fault to bankrupt firms in the tort system. In the same Rand study some plaintiffs attorneys said they routinely filed trust claims early in a case for reason of immediate availability of money concern that trust payment percentages would drop over time or statute of limitations requirements. Others however confirmed that they frequently delayed filing until after the tort case was resolved. Some indicated a belief that it was their ethical obligation to delay filing if the information would assist defendants in assigning liability to bankrupt firms. Although the Rand study was not intended to definitively prove these practices this potential for abuse was identified. On January 10 2014 in the matter of In Re Garlock Sealing Technologies LLC et al. United States Bankruptcy Judge George R Hodges issued his Order Estimating Aggregate Liability in which the Court determined that the amount sufficient to satisfy Garlock sealing technologies LLCs liability for present and future mesothelioma claims for purposes of funding its asbestos personal injury trust was 125 million. In reaching that conclusion the court considered evidence presented over seventeen trial days including 29 witnesses and hundreds of exhibits. The court determined that the best evidence of Garlocks aggregate responsibility was the projection of its legal liability taking into consideration causation limited exposure and the contribution of exposures to other products. The Court found that estimates of Garlocks aggregate liability based on its historic settlement values were not reliable because those values were infected with the impropriety of some law firms and inflated by the costs of defense. In an unprecedented move to determine Garlocks true liability the Court allowed Garlock full discovery in 15 settled cases. For each of the 15 cases through that discovery Garlock demonstrated a pattern by plaintiffs and their counsel represented by five major firms of withholding exposure evidence and other abuses as follows a. One of the leading plaintiffs law firms with a national practice published a 23-page set of directions for instructing their clients on how their testimony about certain exposures could be tailored to maximze recovery based on different entities solvency status b. It was a regular practice by many plaintiffs firms to delay filing trust claims for their clients so the remaining tort system defendants would not have that information. One plaintiffs lawyer justified this practice as based on an ethical duty to conceal the truth about such claims My duty to these clients is to maximize their recovery okay and the best way for me to maximize their recovery is to proceed against solvent viable non-bankrupt defendants first and then if appropriate to proceed against bankrupt companies. c. In the 15 settled cases Garlock demonstrated that exposure evidence was withheld in each and every one of them. These were cases that Garlock had settled for large sums. Garlocks discovery showed what had been withheld in the tort cases on average plaintiffs disclosed only about 2 exposures to bankrupt companies products but after settling with Garlock they made claims against about 19 such companies Trusts. The Court cited specific egregious examples of cases where exposure evidence was withheld In a California case a plaintiff who was a former Navy Machinist aboard a nuclear submarine denied exposure to Pittsburgh Cornings Unibestos insulation fought to keep Pittsburgh Corning off the verdict form and affirmatively represented to the jury there was no Unibestos insulation on the ship. However after a 9 million verdict plaintiffs lawyers filed 14 Trust claims including in the Pittsburgh Corning bankruptcy certifying under penalty of perjury that the plaintiff had been exposed to Unibestos continued on page 12 12 verdict Volume 2 2015 insulation. Plaintiffs lawyers failed to disclose exposure to 22 other asbestos products In a Philadelphia case the plaintiff did not identify exposure to any bankrupt companies asbestos products stating in answers to written interrogatories that plaintiff had no personal knowledge of such exposure. The defendant settled for 250000. Six weeks earlier however plaintiffs lawyers had filed a statement in the Owens Corning bankruptcy case sworn to by plaintiff that he frequently regularly and proximately breathed asbestos dust emitted from Owens Corning Fiberglass Kaylo asbestos-containing pipe covering. Plaintiffs lawyers in total failed to disclose exposure to 20 other asbestos products for which Trust claims were made 14 of which were supported by sworn statements contradicting denials in tort discovery A New York case settled for 250000 during trial in which plaintiff denied exposure to insulation products. After settlement plaintiffs lawyers filed 23 Trust claims 8 of which were filed within 24 hours after the settlement In another California case Garlock settled for 450000 with a Navy technician. Plaintiff denied ever seeing anyone installing or removing pipe insulation on ship. After settlement plaintiffs lawyers filed 11 Trust claims 7 based on declarations that plaintiff personally removed and replaced insulation and identified by name the insulation products to which he was exposed In a Texas case plaintiff received a 1.35 million verdict upon claims that his only asbestos exposure was to Garlock crocidolite gasket material. In discovery responses plaintiff disclosed no other product to which exposure was alleged specifically denied knowledge of the name Babcock Wilcox and attorneys represented to the jury there was no evidence injury was caused by exposure to Owens Corning insulation. The day before plaintiff denied knowledge of Babcock Wilcox plaintiffs lawyers filed a Trust claim against that entity on his behalf. After verdict plaintiffs lawyers also filed a claim with the Owens Corning Trust. Garlock identified 205 additional cases where plaintiffs discovery responses conflicted with at least one of the Trust claim processing facilities or balloting in bankruptcy cases. Garlocks corporate parents general counsel also identified 161 cases during the relevant period where Garlock paid recoveries of 250000 or more. Further the limited discovery allowed by the court demonstrated that almost half of those cases involved misrepresentation of exposure evidence. The court in Garlock noted that while the 15 settled cases for which discovery was allowed were not purported to be a random or representative sample the fact that each and every one of them contained demonstrable misrepresentation was surprising and persuasive. The court further commented that it appeared certain that more extensive discovery would show more extensive abuse. The Garlock court contrasted those cases in which exposure evidence was withheld to several cases in which Garlock obtained evidence of trust claims and was able to use them in its defense at trial. In three of them Garlock won defense verdicts and in a fourth it was assigned only a two percent liability share. The court in Garlock also considered persuasive observations of Garlocks outside counsel who were involved in negotiating or trying cases and of its general counsel involved in approving settlements. They observed that when the thermal insulation defendants were excluded from the tort system evidence of exposure to their products disappeared. This was corroborated by the discovery allowed by the Garlock court. In the wake of the Garlock order many jurisdictions began pursuing in earnest greater transparency for asbestos personal injury settlement trusts to report on claims by legislation. See Furthering Asbestos Claim Transparency FACT Act of 2015 H.R. 526 West Virginia Senate Bill 411 also known as the Asbestos Bankruptcy Trust Claims Transparency Act and the Asbestos continued from page 11 Asbestos and Silica Claims Priorities Act. Other jurisdictions have looked to the courts for solutions. Judge Emilie H. Elias the Coordination Trial Judge for asbestos cases in Los Angeles Orange and San Diego Counties on April 7 2015 issued an order that goes far to ensure transparency in asbestos trust claims. Judge Elias Order specifically provides that facts relating to a plaintiffs or a decedents alleged exposures to asbestos are not privileged and are discoverable. Plaintiffs must disclose all facts relating to all alleged exposures to asbestos regardless of whether attributable to named defendants bankrupt or other entities and whether the facts have been or ever will be included in a claim to a third- party to obtain compensation for asbestos- related injury. Judge Elias Order specifically requires plaintiffs disclosure of documents and other asbestos bankruptcy trust filings. Plaintiffs must execute and provide a signed Asbestos Bankruptcy Trust Authorization which comprehensively encompasses any and all documents and information submitted or communicated to a trust by a claimant or claim holder. Plaintiffs must respond to six additional interrogatories 73 - 78 appended to the LAOSD Standard Interrogatories to Plaintiffs. The interrogatories identify but are not limited to 61 Asbestos Bankruptcy Trusts. The interrogatories in part key off a revised interrogatory number 68 and require plaintiffs to identify facts supporting any claim identified in response to interrogatory number 68 73 and all persons who have knowledge of facts about each product a plaintiff or decedent was exposed which support their claim 74. However the additional interrogatories then delve deeper. For each of the 61 identified Asbestos Bankruptcy Trusts Plaintiffs are required to identify all facts 75 witnesses 76 and documents 77 that relate to any claimed exposure. Plaintiffs must supplement and update the responses to defendants additional interrogatories and interrogatories 68 to 72 of the LAOSD Standard Interrogatories to plaintiffs no later than 5 days before trial if new witnesses or documents have been discovered. continued on page 13 Volume 2 2015 verdict 13 Plaintiffs in Southern California asbestos actions also must produce all documents sent to received from shown to exchanged with or otherwise disclosed to any established or pending asbestos trust for any purpose including but not limited to supporting a claim providing notice of or reserving a place for a future claim for compensation for asbestos-related injury. In some situations plaintiffs counsel were known to file trust paperwork that stopped just short of actually asserting a completed claim so that in discovery they could truthfully say they had not presented any claim. In addition plaintiffs must produce declarations and or affidavits circulated to someone other than plaintiff and plaintiffs counsel or their law firm and set forth facts regarding a plaintiffs andor decedents exposure to asbestos or asbestos-related injury. This production of bankruptcy trust related documents is required to be made at the same time that plaintiffs serve responses to Defendants Standard Interrogatories. Further plaintiffs are required to supplement the production no later than five days before trial. The Elias Order specifically provides plaintiffs may not object or refuse to produce information related to exposure facts in response to appropriate discovery requests on the grounds that no claims have been or will be made based on such facts or because such facts may also appear in otherwise privileged documents such as signed affidavits or un-submitted bankruptcy trust claim forms. The Elias Order was issued retroactively to apply on or after February 1 2015 for a six month trial period. Thereafter the order is to remain in effect unless amended vacated or otherwise superseded by further order of the Court. Judge Elias Order goes a long way towards promoting transparency in Southern California asbestos litigation. Disclosure of claims relating to bankruptcy trust filings helps level the playing field for current asbestos defendants. Exposure of such claims allows defendants to identify inconsistent claims and argue for a proper allocation of fault among all potentially liable parties. The Elias Order does not go so far as to bar plaintiffs from holding off on any trust claim communications until after resolving claims against solvent defendants and does not provide a mechanism for offsetting a defendants liability by trust payments received after trial although a defendant could seek to introduce evidence of the reasonably likelihood of future payments for that purpose. And while the trusts have little interest in undertaking the administrative burden of cross-checking claims against contradictory allegations in civil actions the trust forms do not require disclosure of such information from a claimant nonetheless this order is a most welcome change for defense counsel and defendants in the defense of asbestos lawsuits. Stephen J. Kelley Stephen J. Kelley Bowman and Brooke. Asbestos continued from page 12 14 verdict Volume 2 2015ASCDC is proud to support the practice of defense lawyers in a variety of ways including Volume 2 2015 verdict 15 alifornia provides extremely broad protections for employees who seek to disclose or refuse to participate in purportedly illegal activity in the course of their employment. These individuals are commonly referred to as whistleblowers. Advising employers on how to properly navigate through whistleblower issues is not easy. Involving the Human Resources HR department can be useful however since most employers already direct employee complaints to the HR department and HR representatives are generally trained on how to receive and investigate personnel complaints. HR can also assist with policy development management training and when necessary monitoring compliance with an employers anti-retaliation policies. While the thoughts below represent more of an idealized wish list of best advice practices and do not reflect the legal standard of care required of an employer defense counsel should consider addressing these ideas with their employer clients to fend off future litigation. Policy Development. When drafting whistleblowing policies employers should start with the premise that ethical conduct and the reporting of illegal conduct are good things and should develop policies that encourage whistleblowing. This is particularly important since California law specifically prohibits discouraging whistleblowing. Advising Clients On the Best Way to Navigate Whistleblower Issues by Laura Reathaford Employers who encourage ethical behavior and take complaints about misconduct seriously arguably demonstrate a desire to follow the law. This in turn increases employee loyalty and productivity which in turn benefits the company in ways beyond avoiding tort liability. In March 2013 for instance Forbes magazine reported on The Worlds Most Ethical Companies as designated by The Ethisphere Institute recognizing that companies understand that a strong culture of ethics is also key to helping drive financial performance. And that studies show that employees increasingly want to work for an organization that aligns with their own personal values. They are more loyal to such organizations. Accordingly employers should explore ways to explain to employees that unethical and illegal conduct will not be tolerated. Employers should also to the extent practicable inform employees of the kind of conduct that it expects from its employees and that the employer will not tolerate any illegal conduct whatsoever. Importantly employers should make clear that employees are not expected to engage in any illegal activity should refuse to engage in any illegal activity and should report any suspicions that illegal activity to HR. Along these same lines employers should examine their procedures for the receipt assessment and investigation of whistleblower complaints. While HR is typically best suited to handle the complaint some larger employers appoint specialized personnel outside of HR andor provide a 1-800 hotline to receive and record complaints. Ideally any written policy will direct employees to specific personnel or hotline information who can receive the complaint while assuring confidentiality to the extent practicable. Once a complaint is received employers should evaluate their procedures for handling and investigating the complaint. Using HR for this purpose is favorable in most cases because they already have knowledge of the company and its personnel are familiar with the companys policies often have education and experience with the law surrounding discrimination and retaliation and are less often the decision makers with respect to pay and promotion decisions. Management Training. While most employees bring their complaints to HR many others may complain to their direct supervisors or someone in operations with a supervisory role. Oftentimes when complaints are made they are not always clearly communicated as complaints. Importantly Californias anticipatory retaliation standard imputes liability to continued on page 16 16 verdict Volume 2 2015 employers who retaliate against an employee if the employer believes an employee may report or disclose illegal information. This makes it all the more critical that managers not only learn how to recognize a complaint but also recognize when an employee may be expected to complain. Even with the best policies in place employers face liability claims that can be difficult to dispose of summarily because of the he said she said nature of many disputes. However liability prevention starts with education and training. HR is often well equipped to provide this training since most HR managers are trained in whistleblowing and retaliation laws and likely have participated in drafting the companys policies. Disseminating or simply passing along the law or policy information may not be enough to avoid liability. Going the extra mile by conducting focus groups with managers and employees about issues that may concern the workforce along with role playing examples of how complaints are made demonstrating how some complaints can be vague and unspecific may prove useful to managers fully understanding the variety of different ways employees may complain or may be expected to complain. Managers should also be trained not to pre-judge a complaint. All too often whistleblowers allege that they brought a concern to a supervisors attention only to have the supervisor summarily dismiss the complaint based on the supervisors belief that the complaint lack merit. Managers can be most effective when they receive complaints in a positive way without pre-judging the merit of the complaint and even praising the complainant for coming forward. This approach may help the employee feel heard and thus avoid a later claim altogether. And if litigation does arise indications that the manager listened with an open mind may go a long way to demonstrating to the jury that the employer was not attempting to squelch complaints. Thus after a complaint is received by a manager the manager may do well to reassure the informant that the complaint will be investigated. Importantly managers should be taught where to forward complaints and if necessary whether and how to communicate the outcome of the investigation back to the informant. Ensuring Compliance with Anti- Retaliation Policies. Even if an employee makes a complaint that is ultimately found by the employer to lack merit the employer could still be liable under the whistleblower statute for retaliation if an adverse employment action is taken against a whistleblower because they engaged in whistleblowing activity. Assuming employers have a policy against retaliation HR can be instrumental in ensuring compliance with this policy. For instance after a complaint is made it may be helpful to have someone from HR appointed as a liaison to the informant. The liaison can check-in periodically with the employee to ensure that he or she does not feel that the work environment has changed because a complaint was made. This appointee can also monitor the workplace periodically and make notes of any observed workplace behavior either positive or negative and can be assigned to monitor performance reviews or employee counselling documents to ensure neutrality has been maintained and respected. Appointing such a liaison with a clearly defined role as outlined above helps the employer demonstrate transparency in the process. While a de facto liaison may often be involved when disputes arise the formal appointment of such a person shows that persons efforts to be a constructive part of the process minimizing the chance that he or she may later be characterized as someone who is just trying to paper over an issue. Closing remarks. California protections for whistleblowers are broad but not every person who complains about something at the workplace has a valid grievance and airing complaints should not insulate the complainer from meeting the employers legitimate job performance requirements. Too often underperforming employees or those whose duties are revised for perfectly proper business reasons argue that adverse employment actions against them are the result of workplace grousing repackaged as whistleblowing. Employers are advised to get in front of whistleblower issues before litigation ensues. By using corporate HR departments to develop policies that encourage whistleblowing to train managers about how to receive and respond to complaints and to monitor potential retaliation employers should be better positioned to defend against whistleblower retaliation claims. And while it may be impossible to predict every instance when an employee might be expected to complain conducting focus groups and asking employees about their workplace concerns in advance may assist employers keep whistleblower issues in-house and out of court. Laura Reathaford Laura Reathaford is a partner in the Los Angeles office of Venable LLP specializing in the defense of employment matters including wage and hour class actions and PAGA claims. Whistleblowers continued from page 15 Volume 2 2015 verdict 17 ne of the most frustrating issues for defense counsel and their clients and principals is how much they spend in valuable resources responding to other defendants attacks that ultimately benefit only the plaintiff. One tried and true approach to combat this issue is to utilize a Joint Defense Agreement JDA. JDAs have been around for many years however defense counsel far too often do not take advantage of the many benefits JDAs can provide. JDAs can help lead to an efficient and effective defense reduce costs and most importantly streamline the defendants efforts so that they are unified in attacking the plaintiffs claims instead of each other. However JDAs must be used strategically with a well thought-out plan and a coordination of efforts with the right counsel in the right case to be the most effective. A JDA is a detailed written agreement created by defense counsel with the consent of their clients and used by parties with common interests to coordinate strategies pool resources and reduce costs. A comprehensive written JDA can be the best protection for defendants against the undesirable risks such as the waiver of privileged information finger-pointing generating exorbitant costs and expenditure of excessive time and resources. The primary purpose of the JDA is to preserve the common interest and joint defense privileges without creating any attorney- by Wendy Wilcox and Glenn Barger Reap the Benefits of the Joint Defense Agreement With the Right Counsel in the Right Case client relationships that may not otherwise exist and provide protections if the JDA ultimately unravels. JDAs have been permitted pursuant to the Joint Defense Doctrine and Common Interest Doctrine as recognized at least in part by Hunydee v. United States 9th Cir. 1965 355 F. 2d 183 and Continental Oil Company v. United States 9th Cir. 1964 330 F. 2d 347. The right case for a JDA is one where the defense can be aligned either on liability or damages or both. An added bonus of the right case is where the plaintiff has galvanized the defense parties. For example if the plaintiffs strategy in proving the case is to attack all defendants and not differentiate between them regarding which is liable or caused plaintiffs damages its easy for the defendants to align themselves and work together to attack back with a unified front. No one defendant has anything to lose by working with all defendants under the JDA because the plaintiff is treating them as if they are all liable and caused the plaintiffs damages. The right defense counsel include those who are experienced take advantage of each JDA members skillsets and take leadership in dividing up the labor. Importantly JDA members should check their egos at the door and be prepared to allow others to take the lead when the situation dictates. A JDA usually does not work to the benefit of everyone when counsel is inexperienced lacks leadership or when the defense cannot align themselves or coordinate efforts to effectively divide the labor. The basic JDA should include at least the following six general terms 1 clear identification of the JDA members parties counsel experts consultants insurers and anyone working with the defense parties 2 a provision that any privilege as to any communication among the JDA members or work product of defense counsel cannot be waived 3 a provision that the JDA members cannot share information with anyone outside the members of the JDA 4 a provision that any claims by and between JDA members relating to the case are specifically reserved as necessary until after the case is over 5 a provision that the JDA members will not offer any opinions conclusions andor testimony adverse or otherwise critical of any other member and will refrain from asking any questions or soliciting any opinions conclusions or testimony adverse or critical of any other member and 6 a provision that any withdrawal of a JDA member must be made in writing to all members. continued on page 18 18 verdict Volume 2 2015 With respect to number two above the following two cases are instructive regarding the privileged communication protections provided by a JDA U.S. v. Henke 9th Cir. 2000 222 F.3d 633 637 entering into a joint defense agreement establishes an implied attorney-client relationship between all defendants and attorneys who are parties to the agreement see also Meza v. H. Muehlstein Co. Inc. 2009 176 Cal. App.4th 969. If the JDA includes a provision to reserve rights as set forth in number four above the defense side of the case through litigation and trial can be cut down significantly because the defense parties have agreed to reserve their rights on their cross-claims until after the case or trial is over. Quite simply this also provides peace of mind that you may still pursue your claims and defenses against other parties at a later time while not assisting the plaintiff to prove his or her case. It can also be helpful to include a provision these cross-claims will be mediated rather than litigated to further save time and costs. If the JDA includes a provision to not offer opinions conclusions and arguments adverse to other participants as set forth in number five above everyone benefits because the defense experts and witnesses refrain from finger-pointing which only leads to arguments meet and confer discussions motions further depositions and other issues our typical adversarial system brings with it. With this anti-defense pointing provision along with the reservation of rights provision in your JDA time and money is also saved at trial because if the defense parties are not pointing proverbial fingers at each other fewer lay and expert witnesses are typically needed to present the defendants case and disagreements typically can be resolved later through alternative dispute measures. The defense can then focus their valuable trial time on attacking and defeating the plaintiffs claims. It is helpful to keep several issues in mind while navigating through the case with a JDA. Timing is always an issue regarding when to execute the JDA. Typically the JDA should be executed early on so there is enough time to coordinate efforts divide the labor and start sharing costs. Also the sooner the JDA is executed the sooner JDA members can take advantage of safely sharing privileged information. A JDA can be narrow and among a couple of defendants or broad and among all defendants. It does not need to include all defendants to reap its benefits. For example the tenants of a commercial property could execute a JDA among themselves without including the property owner in a premises liability action. It depends on the issues in the case and the strategies of the defendants and their counsel. The key is that any time parties cooperate and work with each other everyone can benefit. Defense counsel need to work together towards the ultimate goal in the case i.e. work together to defeat plaintiffs case regarding liability or damages or both. In particular defense counsel should focus on the ultimate goal at the macro level and respect each other not focus solely on their or their clients individual needs and wants at the micro level. Counsel can and should aggressively defend the client at the micro level while at the same time work with the JDA members at the macro level to coordinate efforts and share costs to show the plaintiff cannot prove any liability or his or her damages. It defeats the purpose of the JDA for defense counsel to focus solely on their clients individual position in the case and the JDA will not work to the advantage of the parties. Defense counsel should also divide up the labor by designating particular counsel to take the lead in deposing plaintiffs lay and expert witnesses. For example in a construction defect case defense counsel for the roofer should be designated to the take the depositions of the plaintiffs witnesses regarding the roof claims. This same approach should be considered at trial. Coordinating efforts in this way helps to prevent the jack of all trades master of none approach too often seen from counsel who does not take advantage of the skillset of their aligned colleagues. Further defense counsel should divide up the labor among counsel regarding pre-trial motions. Rather than having all defense counsel prepare motions in limine counsel should divide up the labor so that certain counsel take lead and the remaining counsel file joinders. If there is a coordinated effort by the defense from the outset of the case through discovery through pre-trial motions and trial under a JDA everyone can and will reap its benefits because undoubtedly this will result in a better defense to the detriment of the plaintiff all while saving time and money for the client. Wendy Wilcox Wendy Wilcox Skane Wilcox LLP Glenn Barger Glenn Barger Chapman Gluckman Dean Roeb Barger Joint Defense Agreement continued from page 17 Volume 2 2015 verdict green sheets i Lisa Perrochet The Green Sheets although published later than most current advance sheets because of copy deadlines should serve as a useful review of recent important decisions. Readers are invited to suggest significant decisions for inclusion in the next Green Sheets edition. Please contact LPerrochethorvitzlevy.com or ECuattohorvitzlevy.com To make the Green Sheets a useful tool to defense counsel they are printed in green and inserted in the middle of Verdict magazine each issue. They can be easily removed and filed for further reference. Of course the Green Sheets are always one attorneys interpretation of the case and each attorney should thoroughly read the cases before citing them or relying on this digest. Careful counsel will also check subsequent history before citing. green sheets NOTES ON RECENT DECISIONS ANTI-SLAPP An order granting a special motion to strike a SLAPPback cause of action is reviewable by discretionary writ not interlocutory appeal as a matter of right. West v. Arent Fox LLP 2015 237 Cal.App.4th 1065 On behalf of its client residential facility Arent Fox LLP filed a defamation complaint against Val West West. After the trial court granted Wests anti-SLAPP motion as to the defamation claim West sued Arent Fox for malicious prosecution. Arent Fox moved to strike Wests malicious prosecution claim which was a SLAPPback cause of action. The trial court granted Arent Foxs motion and West appealed. The Court of Appeal Second Dist. Div. Five dismissed Wests appeal. While rulings on anti-SLAPP motions are subject to interlocutory appeal under Code of Civil Procedure sections 425.16 and 904.1a13 rulings on SLAPPback motions are not. Rather SLAPPback motions are specifically governed by section 425.18 which provides that section 904.1a13s interlocutory appeal authorization does not apply to such motions. Orders striking SLAPPback causes of action are reviewable only by writ within 20 days of the order per section 425.18g. Malicious prosecution claim is unlikely to succeed for purposes of anti-SLAPP statute where the malicious prosecution plaintiff is still litigating his own cross-claims in the underlying action. Pasternack v. McCullough 2015 235 Cal.App.4th 1347 After being sued for breach of a home purchase contract homebuyer filed a malicious prosecution suit against the sellers attorneys. The attorneys filed an anti-SLAPP motion. The trial court granted the motion on the ground that the homebuyer could not show a likelihood of prevailing on his malicious prosecution claim prong two because his cross-claims against the seller were still pending so no judgment in his favor had yet been entered in the underlying action . The homebuyer appealed arguing that he had prevailed on the sellers claims and the pendency of his own affirmative claims for relief was irrelevant. The Court of Appeal Fourth Dist. Div. Two affirmed. The court held that the homebuyer could not establish the favorable- termination element of his malicious prosecution cause of action while still pursuing a cross-complaint in the underlying action against some of the same defendants he claimed maliciously filed the complaint in the underlying action. Permitting the malicious prosecution action against the sellers attorneys to proceed while they were still representing the seller in the underlying action would create the appearance of a conflict of interest between the attorneys and their still-client. See also Parrish v. Latham Watkins 2015 238 Cal.App.4th 81 anti-SLAPP motion properly granted where malicious prosecution defendant defeated summary judgment motion in the underlying action under the interim adverse judgment rule the defendants successful defeat of the summary judgment motion precluded a malicious prosecution action even though the same trial judge who ruled on the summary judgment motion later found the defendant initiated the action in bad faith. See also Finton Construction Inc. v. Bidna Keys APLC 2015 238 Cal.App.4th 200 anti-SLAPP motion properly granted because litigation privilege protected attorneys receipt of allegedly stolen hard drive in the course of discovery in a case in which they were attorneys of record Volume 2 2015 verdict green sheets i Lisa Perrochet The Green Sheets although published later than most current advance sheets because of copy deadlines should serve as a useful review of recent important decisions. Readers are invited to suggest significant decisions for inclusion in the next Green Sheets edition. Please contact LPerrochethorvitzlevy.com or ECuattohorvitzlevy.com To make the Green Sheets a useful tool to defense counsel they are printed in green and inserted in the middle of Verdict magazine each issue. They canVerdict magazine each issue. They canVerdict be easily removed and filed for further reference. Of course the Green Sheets are always one attorneys interpretation of the case and each attorney should thoroughly read the cases before citing them or relying on this digest. Careful counsel will also check subsequent history before citing. green sheetsgreen sheets NOTES ON RECENT DECISIONS ANTI-SLAPP An order granting a special motion to strike a SLAPPback cause of action is reviewable by discretionary writ not interlocutory appeal as a matter of right. West v. Arent Fox LLP 2015 237 Cal.App.4th 1065 On behalf of its client residential facility Arent Fox LLP filed a defamation complaint against Val West West. After the trial court granted Wests anti-SLAPP motion as to the defamation claim West sued Arent Fox for malicious prosecution. Arent Fox moved to strike Wests malicious prosecution claim which was a SLAPPback cause of action. The trial court granted Arent Foxs motion and West appealed. The Court of Appeal Second Dist. Div. Five dismissed Wests appeal. While rulings on anti-SLAPP motions are subject to interlocutory appeal under Code of Civil Procedure sections 425.16 and 904.1a13 rulings on SLAPPback motions are not. Rather SLAPPback motions are specifically governed by section 425.18 which provides that section 904.1a13s interlocutory appeal authorization does not apply to such motions. Orders striking SLAPPback causes of action are reviewable only by writ within 20 days of the order per section 425.18g. Malicious prosecution claim is unlikely to succeed for purposes of anti-SLAPP statute where the malicious prosecution plaintiff is still litigating his own cross-claims in the underlying action. Pasternack v. McCullough 2015 235 Cal.App.4th 1347 After being sued for breach of a home purchase contract homebuyer filed a malicious prosecution suit against the sellers attorneys. The attorneys filed an anti-SLAPP motion. The trial court granted the motion on the ground that the homebuyer could not show a likelihood of prevailing on his malicious prosecution claim prong two because his cross-claims against the seller were still pending so no judgment in his favor had yet been entered in the underlying action . The homebuyer appealed arguing that he had prevailed on the sellers claims and the pendency of his own affirmative claims for relief was irrelevant. The Court of Appeal Fourth Dist. Div. Two affirmed. The court held that the homebuyer could not establish the favorable- termination element of his malicious prosecution cause of action while still pursuing a cross-complaint in the underlying action against some of the same defendants he claimed maliciously filed the complaint in the underlying action. Permitting the malicious prosecution action against the sellers attorneys to proceed while they were still representing the seller in the underlying action would create the appearance of a conflict of interest between the attorneys and their still-client. See also Parrish v. Latham Watkins 2015 238 Cal.App.4th 81 anti-SLAPP motion properly granted where malicious prosecution defendant defeated summary judgment motion in the underlying action under the interim adverse judgment rule the defendants successful defeat of the summary judgment motion precluded a malicious prosecution action even though the same trial judge who ruled on the summary judgment motion later found the defendant initiated the action in bad faith. See also Finton Construction Inc. v. Bidna Keys APLC 2015Finton Construction Inc. v. Bidna Keys APLC 2015Finton Construction Inc. v. Bidna Keys APLC 238 Cal.App.4th 200 anti-SLAPP motion properly granted because litigation privilege protected attorneys receipt of allegedly stolen hard drive in the course of discovery in a case in which they were attorneys of record ii verdict green sheets Volume 2 2015 ATTORNEY FEES AND COSTS Civil Code section 3291 prejudgment interest may not be awarded on costs. Bean v. Pacic Coast Elevator Corporation 2015 234 Cal.App.4th 1423 In this personal injury case arising out of a vehicle accident the jury awarded the plaintiff 1.27 million in damages. That award exceeded the plaintiffs offer of judgment under Code of Civil Procedure section 998. The trial court then awarded the plaintiff 34830 in costs and ordered prejudgment interest under Civil Code section 3291 to run on the entire judgment damages plus costs. In the defendants appeal from the judgment the Court of Appeal Fourth Dist. Div. 1 held that section 3291 prejudgment interest does not run on the costs portion of a judgment. The court reasoned that under Lakin v. Watkins Associated Industries 1993 6 Cal.4th 644 prejudgment interest runs only on damages for personal injury which costs are not. See also Lee v. Silveira 2015 236 Cal.App.4th 1208 when determining whether defendant failed to obtain a more favorable judgment than its settlement offer under Code of Civil Procedure section 998 trial court properly first reduced the jury verdicts for past medical expenses which was based on full amounts billed to the smaller amount actually paid by plaintiffs insurer. Prevailing defendants in FEHA cases may recover costs and fees at the trial courts discretion but not as a matter of right and only if plaintiffs case was objectively groundless. Williams v. Chino Valley Independent Fire District 2015 61 Cal.4th 97 The plaintiff sued his employer a local fire district for employment discrimination under the California Fair Employment and Housing Act FEHA. The fire district prevailed on summary judgment and the trial court awarded prevailing party costs pursuant to Code of Civil Procedure section 1032 awarding costs as a matter of right. The plaintiff appealed arguing that costs awards in FEHA actions are governed not by Code of Civil Procedure section 1032 but by FEHA Government Code section 12965b awarding costs in the trial courts discretion. Additionally the plaintiff argued that the trial courts discretion in awarding costs is bounded by Christiansburg Garment Co. v. EEOC 1978 434 U.S. 412 which says that an unsuccessful FEHA plaintiff should not be ordered to pay the defendants fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit. The California Supreme Court agreed with the plaintiff. Government Code section 12965b takes precedence over the more general Code of Civil Procedure section 1032. The Christiansburg rule governs the trial courts discretion in awarding fees under section 12965b so fees and costs cannot be awarded against a losing plaintiff unless the trial court determines that the plaintiffs action was frivolous. But see Cypress Semiconductor Corporation v. Maxim Integrated Products Inc. 2015 236 Cal.App.4th 243 award of attorney fees to prevailing defendant pursuant to Civil Code section 3426.4 authorizing such an award where a claim for misappropriation of trade secrets is found to have been made in bad faith was proper where finding of bad faith was amply supported by the evidence and defendants were prevailing parties because the plaintiff dismissed the suit only to avoid an adverse determination on the merits And see Calvo Fisher Jacob LLP v. Lujan 2015 234 Cal.App.4th 608 where engagement letter provided for an award of attorney fees to prevailing party in fee litigation law firm that prevailed in dispute with client could recover reasonable fees and costs as to the entire litigation including tort and contract claims raised in the clients cross-complaint. ii verdict green sheets Volume 2 2015 ATTORNEY FEES AND COSTS Civil Code section 3291 prejudgment interest may not be awarded on costs. Bean v. Pacic Coast Elevator Corporation 2015 234 Cal.App.4th 1423 In this personal injury case arising out of a vehicle accident the jury awarded the plaintiff 1.27 million in damages. That award exceeded the plaintiffs offer of judgment under Code of Civil Procedure section 998. The trial court then awarded the plaintiff 34830 in costs and ordered prejudgment interest under Civil Code section 3291 to run on the entire judgment damages plus costs. In the defendants appeal from the judgment the Court of Appeal Fourth Dist. Div. 1 held that section 3291 prejudgment interest does not run on the costs portion of a judgment. The court reasoned that under Lakin v. Watkins Associated Industries 1993 6 Cal.4th 644 prejudgment interest runs only on damages for personal injury which costs are not. See also Lee v. Silveira 2015 236 Cal.App.4th 1208 when determining whether defendant failed to obtain a more favorable judgment than its settlement offer under Code of Civil Procedure section 998 trial court properly first reduced the jury verdicts for past medical expenses which was based on full amounts billed to the smaller amount actually paid by plaintiffs insurer. Prevailing defendants in FEHA cases may recover costs and fees at the trial courts discretion but not as a matter of right and only if plaintiffs case was objectively groundless. Williams v. Chino Valley Independent Fire District 2015 61 Cal.4th 97 The plaintiff sued his employer a local fire district for employment discrimination under the California Fair Employment and Housing Act FEHA. The fire district prevailed on summary judgment and the trial court awarded prevailing party costs pursuant to Code of Civil Procedure section 1032 awarding costs as a matter of right. The plaintiff appealed arguing that costs awards in FEHA actions are governed not by Code of Civil Procedure section 1032 but by FEHA Government Code section 12965b awarding costs in the trial courts discretion. Additionally the plaintiff argued that the trial courts discretion in awarding costs is bounded by Christiansburg Garment Co. v. EEOC 1978 434 U.S. 412 whichChristiansburg Garment Co. v. EEOC 1978 434 U.S. 412 whichChristiansburg Garment Co. v. EEOC says that an unsuccessful FEHA plaintiff should not be ordered to pay the defendants fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit. The California Supreme Court agreed with the plaintiff. Government Code section 12965b takes precedence over the more general Code of Civil Procedure section 1032. The Christiansburg rule governs the trial courts discretion in awarding fees under section 12965b so fees and costs cannot be awarded against a losing plaintiff unless the trial court determines that the plaintiffs action was frivolous. But see Cypress Semiconductor Corporation v. Maxim Integrated Products Inc. 2015 236 Cal.App.4th 243 award of attorney fees to prevailing defendant pursuant to Civil Code section 3426.4 authorizing such an award where a claim for misappropriation of trade secrets is found to have been made in bad faith was proper where finding of bad faith was amply supported by the evidence and defendants were prevailing parties because the plaintiff dismissed the suit only to avoid an adverse determination on the merits And see Calvo Fisher Jacob LLP v. Lujan 2015 234 Cal.App.4th 608 where engagement letter provided for an award of attorney fees to prevailing party in fee litigation law firm that prevailed in dispute with client could recover reasonable fees and costs as to the entire litigation including tort and contract claims raised in the clients cross-complaint. Volume 2 2015 verdict green sheets iii CIVIL PROCEDURE A party is entitled to mandatory relief from a dismissal entered as a terminating sanction for discovery abuse if her attorney is at fault and she substantially complies with the discovery order before the hearing on her application for relief. Rodriguez v. Brill 2015 234 Cal.App.4th 715 The trial court entered a judgment of dismissal against the plaintiff as a sanction for failure to timely respond to discovery. The plaintiff sought relief under the mandatory relief provision of Code of Civil Procedure section 473b which states that the court shall grant relief when an application for relief is accompanied by an attorneys sworn affidavit of fault unless the court finds the attorney was not in fact at fault. The plaintiff served her discovery responses soon thereafter. The trial court denied relief without explanation and the plaintiff appealed. The Court of Appeal Fifth Dist. reversed. 1 A dismissal entered as a terminating sanction for failure to respond to discovery is a dismissal within the reach of section 473bs mandatory relief provision 2 the trial court must make explicit findings that an attorney is not at fault when denying mandatory relief despite an attorneys affidavit of fault and 3 the application for relief is in proper form under section 473b when the moving party serves substantially compliant discovery responses before the hearing on the application The plaintiff was entitled to relief from the dismissal because her attorney was at fault for the circumstances giving rise to the terminating sanction and she served substantially compliant discovery before the hearing on her application. Judgment entered prematurely after rst phase of bifurcated trial is not a nal judgment for purposes of appeal. Baker v. Castaldi 2015 235 Cal.App.4th 218 In the first phase of a bifurcated bench trial the trial court found the defendants liable for compensatory damages and that they acted with malice fraud and oppression sufficient to entitle plaintiff to recover punitive damages. The court entered a judgment based on those findings and the defendants filed notices of appeal. The trial court subsequently entered other orders including enforcement orders. The Court of Appeal Fifth Dist. dismissed the appeal on its own motion. The judgment reflecting the findings in the first phase of the trial was not a final appealable judgment because the issue of the amount of punitive damages remained to be tried. The court noted that even if its result was harsh because it effectively prevented the appellants from obtaining review of several unusual orders now and possibly ever a court is not at liberty to modify the standards for appealability. This case highlights one of the problems with trial courts entering judgment prematurely before completing all judicial action bearing on the amount owed on a judgment such as determining settlement offsets resolving equitable claims and so forth. The jurisdictional deadlines for noticing and ruling on a new trial motion are triggered by service of notice of entry of judgment on the moving party not by the moving party. Maroney v. Iacobsohn 2015 237 Cal.App.4th 473 Following entry of judgment in this personal injury case the defendant sought costs based on the plaintiffs failure to do better than the defendants offer to compromise under CCP 998. Plaintiff moved to tax costs attaching a copy of the judgment to her motion. Twenty-two days later plaintiff moved for a new trial which was heard sixty days later. The defendant argued the motion was untimely because it was filed more than 15 days after the plaintiff served notice of entry of judgment and similarly that the trial court lacked jurisdiction to grant the motion because its time to do so had expired. The trial court believed a new trial was warranted but was concerned about its jurisdiction to grant the plaintiffs motion. The trial court therefore issued an order granting plaintiffs motion conditioned on the appellate court determining it had jurisdiction to grant the motion. The Court of Appeal Second. Dist. Div. Three held that the plaintiffs motion was timely. The express language of CCP 659 and 660 provide that their deadlines are triggered by service on the moving party so plaintiffs purported service of the judgment with her motion to tax costs did not trigger the deadlines. However the order conditionally granting the new trial was a nullity because nothing in the statutory procedure governing new trial motions permits a trial court to grant a new trial conditioned on appellate review of the order. And because the trial court did not issue a valid order within 60 days of the motion the motion was denied by operation of law. While motions for new trial are reviewable on appeal from the judgment the plaintiff provided no grounds for reversal of the judgment so it had to be affirmed. Volume 2 2015 verdict green sheets iii CIVIL PROCEDURE A party is entitled to mandatory relief from a dismissal entered as a terminating sanction for discovery abuse if her attorney is at fault and she substantially complies with the discovery order before the hearing on her application for relief. Rodriguez v. Brill 2015 234 Cal.App.4th 715 The trial court entered a judgment of dismissal against the plaintiff as a sanction for failure to timely respond to discovery. The plaintiff sought relief under the mandatory relief provision of Code of Civil Procedure section 473b which states that the court shall grant relief when an application for relief is accompanied by an attorneys sworn affidavit of fault unless the court finds the attorney was not in fact at fault. The plaintiff served her discovery responses soon thereafter. The trial court denied relief without explanation and the plaintiff appealed. The Court of Appeal Fifth Dist. reversed. 1 A dismissal entered as a terminating sanction for failure to respond to discovery is a dismissal within the reach of section 473bs mandatory relief provision 2 the trial court must make explicit findings that an attorney is not at fault when denying mandatory relief despite an attorneys affidavit of fault and 3 the application for relief is in proper form under section 473b when the moving party serves substantially compliant discovery responses before the hearing on the application The plaintiff was entitled to relief from the dismissal because her attorney was at fault for the circumstances giving rise to the terminating sanction and she served substantially compliant discovery before the hearing on her application. Judgment entered prematurely after rst phase of bifurcated trial is not a nal judgment for purposes of appeal. Baker v. Castaldi 2015 235 Cal.App.4th 218 In the first phase of a bifurcated bench trial the trial court found the defendants liable for compensatory damages and that they acted with malice fraud and oppression sufficient to entitle plaintiff to recover punitive damages. The court entered a judgment based on those findings and the defendants filed notices of appeal. The trial court subsequently entered other orders including enforcement orders. The Court of Appeal Fifth Dist. dismissed the appeal on its own motion. The judgment reflecting the findings in the first phase of the trial was not a final appealable judgment because the issue of the amount of punitive damages remained to be tried. The court noted that even if its result was harsh because it effectively prevented the appellants from obtaining review of several unusual orders now and possibly ever a court is not at liberty to modify the standards for appealability. This case highlights one of the problems with trial courts entering judgment prematurely before completing all judicial action bearing on the amount owed on a judgment such as determining settlement offsets resolving equitable claims and so forth. The jurisdictional deadlines for noticing and ruling on a new trial motion are triggered by service of notice of entry of judgment on the moving party not by the moving party.by the moving party.by Maroney v. Iacobsohn 2015 237 Cal.App.4th 473 Following entry of judgment in this personal injury case the defendant sought costs based on the plaintiffs failure to do better than the defendants offer to compromise under CCP 998. Plaintiff moved to tax costs attaching a copy of the judgment to her motion. Twenty-two days later plaintiff moved for a new trial which was heard sixty days later. The defendant argued the motion was untimely because it was filed more than 15 days after the plaintiff served notice of entry of judgment and similarly that the trial court lacked jurisdiction to grant the motion because its time to do so had expired. The trial court believed a new trial was warranted but was concerned about its jurisdiction to grant the plaintiffs motion. The trial court therefore issued an order granting plaintiffs motion conditioned on the appellate court determining it had jurisdiction to grant the motion. The Court of Appeal Second. Dist. Div. Three held that the plaintiffs motion was timely. The express language of CCP 659 and 660 provide that their deadlines are triggered by service on the moving party so plaintiffs purported service of the judgment with her motion to tax costs did not trigger the deadlines. However the order conditionally granting the new trial was a nullity because nothing in the statutory procedure governing new trial motions permits a trial court to grant a new trial conditioned on appellate review of the order. And because the trial court did not issue a valid order within 60 days of the motion the motion was denied by operation of law. While motions for new trial are reviewable on appeal from the judgment the plaintiff provided no grounds for reversal of the judgment so it had to be affirmed. iv verdict green sheets Volume 2 2015 In a multi-defendant case led in the wrong venue all defendants must answer before the court may consider retaining case for the parties convenience. Cholakian Associates v. Superior Court McDonold 2015 236 Cal.App.4th 361 A trucking company sued its insurers and defense attorneys for alleged improper handling of a personal injury suit against it. The defense attorneys moved to transfer venue under Code of Civil Procedure section 396ba arguing the case was in the wrong venue because no individual defendant resided there and no corporate defendant had its principal place of business there. The trial court found that venue was not proper but denied the motion on the ground the convenience of witnesses favored retaining the case as argued by the trucking company in its opposition to the transfer motion. The attorneys sought a writ of mandate. The Court of Appeal Third Dist. granted writ relief. Under section 396ba an opposition to a motion to transfer venue to a proper court must be filed before the defendant answers demurs or moves to strike if the motion is filed after that the plaintiff may oppose the motion on the ground the convenience of witnesses and ends of justice would be served by the court retaining the case. Here the insurer defendants had answered but the attorney defendants had not. It was improper for the court to consider the trucking companys ends of justice opposition to its motion to transfer because under section 396ba all defendants must answer before the trial court may consider such an opposition. Until that point the trial court cannot determine what issues are material and properly evaluate which witnesses convenience would matter. Additionally requiring all defendants to answer would best safeguard each defendants individual right to litigate in his county of residence. TORTS A church has a duty to protect its congregants child from abuse by another congregant during church-sponsored activities. Conti v. Watchtower Bible Tract Society of New York Inc. et al. 2015 235 Cal.App.4th 1214 Plaintiff a former Jehovahs Witnesses member sued her congregation the Jehovahs Witnesses headquarters and Jonathan Kendrick another member of the congregation for Kendricks abusingplaintiff as a child during field service a church-sponsored activity where members go door-to-door preaching in the community and other activities. Before plaintiff was abused elders and officials of the congregation and headquarters learned that Kendrick had molested another child. A jury found the congregation and headquarters liable for 7 million in compensatory damages and the headquarters liable for 21 million in punitive damages remitted to about 8 million. The congregation and headquarters appealed. The Court of Appeal First Dist. Div. Three held the appellants had no duty to warn the congregations members about Kendricks past child sexual abuse because there was no special relationship between the church and the congregations children. That required reversal of the punitive damages award which was based solely on a theory of failure to warn. However the appellants did have a special relationship with plaintiff with respect to the conduct of field service and accordingly had a legal duty to exercise due care to prevent Kendrick from molesting plaintiff during that activity. The court found substantial evidence that appellants breached this duty by failing to supervise Kendrick during field service and so affirmed the compensatory damages award. See also Doe v. Superior Court First Baptist Church of San Jose 2015 237 Cal.App.4th 239 church that ran summer camp had a special relationship with its minor campers and its employees giving rise to a duty to disclose camp employees suspected molestation of camper to campers parents check status of petition for review iv verdict green sheets Volume 2 2015 In a multi-defendant case led in the wrong venue all defendants must answer before the court may consider retaining case for the parties convenience. Cholakian Associates v. Superior Court McDonold 2015 236 Cal.App.4th 361 A trucking company sued its insurers and defense attorneys for alleged improper handling of a personal injury suit against it. The defense attorneys moved to transfer venue under Code of Civil Procedure section 396ba arguing the case was in the wrong venue because no individual defendant resided there and no corporate defendant had its principal place of business there. The trial court found that venue was not proper but denied the motion on the ground the convenience of witnesses favored retaining the case as argued by the trucking company in its opposition to the transfer motion. The attorneys sought a writ of mandate. The Court of Appeal Third Dist. granted writ relief. Under section 396ba an opposition to a motion to transfer venue to a proper court must be filed before the defendant answers demurs or moves to strike if the motion is filed after that the plaintiff may oppose the motion on the ground the convenience of witnesses and ends of justice would be served by the court retaining the case. Here the insurer defendants had answered but the attorney defendants had not. It was improper for the court to consider the trucking companys ends of justice opposition to its motion to transfer because under section 396ba all defendants must answer before theall defendants must answer before theall trial court may consider such an opposition. Until that point the trial court cannot determine what issues are material and properly evaluate which witnesses convenience would matter. Additionally requiring all defendants to answer would best safeguard each defendants individual right to litigate in his county of residence. TORTS A church has a duty to protect its congregants child from abuse by another congregant during church-sponsored activities. Conti v. Watchtower Bible Tract Society of New York Inc. et al. 2015 235 Cal.App.4th 1214 Plaintiff a former Jehovahs Witnesses member sued her congregation the Jehovahs Witnesses headquarters and Jonathan Kendrick another member of the congregation for Kendricks abusingplaintiff as a child during field service a church-sponsored activity where members go door-to-door preaching in the community and other activities. Before plaintiff was abused elders and officials of the congregation and headquarters learned that Kendrick had molested another child. A jury found the congregation and headquarters liable for 7 million in compensatory damages and the headquarters liable for 21 million in punitive damages remitted to about 8 million. The congregation and headquarters appealed. The Court of Appeal First Dist. Div. Three held the appellants had no duty to warn the congregations members about Kendricks past child sexual abuse because there was no special relationship between the church and the congregations children. That required reversal of the punitive damages award which was based solely on a theory of failure to warn. However the appellants did have a special relationship with plaintiff with respect to the conduct of field service and accordingly had a legal duty to exercise due care to prevent Kendrick from molesting plaintiff during that activity. The court found substantial evidence that appellants breached this duty by failing to supervise Kendrick during field service and so affirmed the compensatory damages award. See also Doe v. Superior Court First Baptist Church of San Jose 2015 237 Cal.App.4th 239 church that ran summer camp had a special relationship with its minor campers and its employees giving rise to a duty to disclose camp employees suspected molestation of camper to campers parents check status of petition for review Volume 2 2015 verdict green sheets v The Federal Tort Claims Act statute of limitations is subject to equitable tolling. United States v. Wong 2015 135 S.Ct. 1625 The statute of limitations provision of the Federal Tort Claims Act 28 U.S.C. 2401b provides that a plaintiff must present her claim to the appropriate federal agency within two years after the claim accrues and assuming the claim is denied must file suit in federal district court within six months after the denial. The first plaintiff Kwai Fun Wong timely brought a false imprisonment claim against the Immigration and Naturalization Service within two years of the accrual of that claim and then after INS denied the claim sought to bring the claim in federal court by amending an earlier complaint she had filed. However due to a delay in the district courts resolution of her motion to amend she missed the six-month deadline to bring the claim. The second plaintiff Marlene June filed a claim with the Federal Highway Administration for wrongful death based on FHAs approval of a faulty highway median barrier that allegedly caused a fatal traffic accident. She filed this claim more than five years after the accident but argued her claim was timely because she did not discover that FHA had approved the faulty median barrier until several years after the accident. The district court held both plaintiffs claims were untimely but the Ninth Circuit sitting en banc to review an internal circuit split on the issue reversed the dismissals holding that the plaintiffs claims were subject to equitable tolling. The U.S. Supreme Court consolidated the two cases for review to address a circuit split on this issue. The Court then affirmed the Ninth Circuits ruling holding that the statutes of limitations set forth in 2401b are not jurisdictional and are subject to equitable tolling if the district court finds the facts warrant application of that doctrine. Gyms release is insufcient to bar personal injury claims based on allegations of gross negligence. Jimenez v. 24 Hour Fitness USA Inc. 2015 237 Cal. App.4th 546 The plaintiff was injured when she fell off a treadmill at a 24 Hour Fitness and hit her head on another piece of exercise equipment placed just over three feet away. She sued 24 Hour Fitness which asserted that a release plaintiff signed when she joined the gym barred her claim. The trial court granted summary judgment for 24 Hour Fitness. The Court of Appeal Third Dist. reversed. The plaintiff had presented sufficient evidence that 24 Hour Fitness set up treadmill too close to the other equipment in violation of the manufacturers safety instructions giving rise to a triable issue on gross negligence which cannot be released. Further triable issues concerned whether the release was even enforceable because the plaintiff presented substantial evidence that despite knowing that the plaintiff spoke only Spanish 24 Hour Fitnesss representative did not obtain a Spanish-speaking employee to explain the release and instead procured the release by misrepresenting the releases contents. A passenger who verbally encourages reckless driving may be liable for civil conspiracy and willfully interfering with the drivers control of the vehicle. Navarrete v. Meyer 2015 237 Cal.App.4th 1276 A passenger in a vehicle driven by her friend urged the driver to race at high speed down a residential street so they could gain air when the car hit dips on the street. The driver complied but lost control of the vehicle and struck a parked car killing the decedent who had been attempting to put one of his children in a car seat in the back of the parked car. The decedents survivors sued the passenger raising claims for civil conspiracy and violation of Vehicle Code Section 21701 which provides that no person shall willfully interfere with the driver of a vehicle or with the mechanism thereof in such a manner as to affect the drivers control of the vehicle. The passenger moved for summary judgment arguing she could not be liable for merely encouraging the driver to increase his speed. The trial court granted summary judgment. The Court of Appeal Fourth Dist. Div. One reversed. A person who encourages or assists a tortfeasor may be liable for the consequences of the tortfeasors acts if the encouragement or assistance is a substantial factor in causing the resulting tort. The court further held that direct physical interference with the driver is not strictly required to violate section 21701. HEALTHCARE Patients may sue nursing facilities for violating regulations requiring complete and accurate health care records. Lemaire v. Covenant Care California LLC 2015 234 Cal.App.4th 860 After her mother died in a skilled nursing facility the plaintiff sued the facility for wrongful death elder abuse and violation of patient rights under Health Safety Code section 1430b providing that a skilled nursing facility patient may bring a civil action for violation of the Patients Bill of Rights or any other right provided for by federal or state law or regulation to recover up to 500 and costs and attorney fees. Plaintiff predicated the latter claim on the facilitys failure to keep complete and accurate health records as required by certain regulations. The jury found for the facility on the wrongful death and elder abuse claims but for the plaintiff on the section 1430b claim. The jury awarded 270000 in statutory damages reflecting 500 per violation for over 500 violations. The court then awarded over 800000 in attorney fees. The facility appealed. The Court of Appeal Second Dist. Div. Six held that section 1430b broadly permits any regulation to be the subject of a private right of action. The court went on to hold however that section 1430bs provision for damages up to 500 limited the plaintiff to recovering 500 total not per violation. Given the substantial reduction in statutory damages the court also reversed the attorney fee award and remanded for reconsideration of an appropriate award in light of the reduced degree of the plaintiffs success in the action. Volume 2 2015 verdict green sheets v The Federal Tort Claims Act statute of limitations is subject to equitable tolling. United States v. Wong 2015 135 S.Ct. 1625United States v. Wong 2015 135 S.Ct. 1625United States v. Wong The statute of limitations provision of the Federal Tort Claims Act 28 U.S.C. 2401b provides that a plaintiff must present her claim to the appropriate federal agency within two years after the claim accrues and assuming the claim is denied must file suit in federal district court within six months after the denial. The first plaintiff Kwai Fun Wong timely brought a false imprisonment claim against the Immigration and Naturalization Service within two years of the accrual of that claim and then after INS denied the claim sought to bring the claim in federal court by amending an earlier complaint she had filed. However due to a delay in the district courts resolution of her motion to amend she missed the six-month deadline to bring the claim. The second plaintiff Marlene June filed a claim with the Federal Highway Administration for wrongful death based on FHAs approval of a faulty highway median barrier that allegedly caused a fatal traffic accident. She filed this claim more than five years after the accident but argued her claim was timely because she did not discover that FHA had approved the faulty median barrier until several years after the accident. The district court held both plaintiffs claims were untimely but the Ninth Circuit sitting en banc to review an internal circuit split on the issue reversed the dismissals holding that the plaintiffs claims were subject to equitable tolling. The U.S. Supreme Court consolidated the two cases for review to address a circuit split on this issue. The Court then affirmed the Ninth Circuits ruling holding that the statutes of limitations set forth in 2401b are not jurisdictional and are subject to equitable tolling if the district court finds the facts warrant application of that doctrine. Gyms release is insufcient to bar personal injury claims based on allegations of gross negligence. Jimenez v. 24 Hour Fitness USA Inc. 2015 237 Cal. App.4th 546 The plaintiff was injured when she fell off a treadmill at a 24 Hour Fitness and hit her head on another piece of exercise equipment placed just over three feet away. She sued 24 Hour Fitness which asserted that a release plaintiff signed when she joined the gym barred her claim. The trial court granted summary judgment for 24 Hour Fitness. The Court of Appeal Third Dist. reversed. The plaintiff had presented sufficient evidence that 24 Hour Fitness set up treadmill too close to the other equipment in violation of the manufacturers safety instructions giving rise to a triable issue on gross negligence which cannot be released. Further triable issues concerned whether the release was even enforceable because the plaintiff presented substantial evidence that despite knowing that the plaintiff spoke only Spanish 24 Hour Fitnesss representative did not obtain a Spanish-speaking employee to explain the release and instead procured the release by misrepresenting the releases contents. A passenger who verbally encourages reckless driving may be liable for civil conspiracy and willfully interfering with the drivers control of the vehicle. Navarrete v. Meyer 2015 237 Cal.App.4th 1276 A passenger in a vehicle driven by her friend urged the driver to race at high speed down a residential street so they could gain air when the car hit dips on the street. The driver complied but lost control of the vehicle and struck a parked car killing the decedent who had been attempting to put one of his children in a car seat in the back of the parked car. The decedents survivors sued the passenger raising claims for civil conspiracy and violation of Vehicle Code Section 21701 which provides that no person shall willfully interfere with the driver of a vehicle or with the mechanism thereof in such a manner as to affect the drivers control of the vehicle. The passenger moved for summary judgment arguing she could not be liable for merely encouraging the driver to increase his speed. The trial court granted summary judgment. The Court of Appeal Fourth Dist. Div. One reversed. A person who encourages or assists a tortfeasor may be liable for the consequences of the tortfeasors acts if the encouragement or assistance is a substantial factor in causing the resulting tort. The court further held that direct physical interference with the driver is not strictly required to violate section 21701. HEALTHCARE Patients may sue nursing facilities for violating regulations requiring complete and accurate health care records. Lemaire v. Covenant Care California LLC 2015 234 Cal.App.4th 860 After her mother died in a skilled nursing facility the plaintiff sued the facility for wrongful death elder abuse and violation of patient rights under Health Safety Code section 1430b providing that a skilled nursing facility patient may bring a civil action for violation of the Patients Bill of Rights or any other right provided for by federal or state law or regulation to recover up to 500 and costs and attorney fees. Plaintiff predicated the latter claim on the facilitys failure to keep complete and accurate health records as required by certain regulations. The jury found for the facility on the wrongful death and elder abuse claims but for the plaintiff on the section 1430b claim. The jury awarded 270000 in statutory damages reflecting 500 per violation for over 500 violations. The court then awarded over 800000 in attorney fees. The facility appealed. The Court of Appeal Second Dist. Div. Six held that section 1430b broadly permits any regulation to be the subject of a private right of action. The court went on to hold however that section 1430bs provision for damages up to 500 limited the plaintiff to recovering 500 total not per violation. Given the substantial reduction in statutory damages the court also reversed the attorney fee award and remanded for reconsideration of an appropriate award in light of the reduced degree of the plaintiffs success in the action. vi verdict green sheets Volume 2 2015 INSURANCE Vandalism exclusion did not apply to bar coverage for re lit by vagrant that got out of control. Ong v. Fire Insurance Exchange 2015 235 Cal.App.4th 901 The insureds property which was vacant suffered fire damage when a vagrant lit a fire on the kitchen floor possibly to keep warm. The insurer denied coverage because the policy excluded property damage caused by vandalism at properties sitting vacant for more than 30 days. The term vandalism was undefined in the policy. The insured sued arguing that coverage should be provided because the cause of damage was a negligently-tended fire not willful and malicious conduct. The trial court granted summary adjudication for the insurer. The insured appealed. The Court of Appeal Second. Dist. Div. One reversed. The court concluded that vandalism requires malice and there was no evidence of malice in this case because the evidence raised a triable issue of fact that the vagrant made the fire only to keep warm not to damage the house. Exclusion for intellectual property rights applies to right of publicity claims. Alterra Excess and Surplus Insurance Company v. Snyder 2015 234 Cal.App.4th 1390 The estate of creative personality R. Buckminster Bucky Fuller sued Maxfield Overton Holdings for using the Bucky name to market products without authorization. The complaint alleged causes of action for unfair competition trademark infringement and unauthorized appropriation of name and likeness. Maxfields insurer denied coverage for the lawsuit and sought an adjudication in the trial court that the policys exclusion for personal or advertising injury arising out of the infringement of copyright patent trademark trade secret or other intellectual property rights precluded coverage. The trial court agreed with the insurer. The Court of Appeal First Dist. Div. Two affirmed holding that the exclusions reference to intellectual property rights clearly applied to violations of the right of publicity so the insured could have had no reasonable expectation of coverage for the estates claims. LABOR EMPLOYMENT Employers are not liable failing to take reasonable steps necessary to prevent sexual harassment where any sexual harassment that occurred was not sufciently severe or pervasive as to result in liability for harassment itself. Dickson v. Burke Williams Inc. 2015 234 Cal.App.4th 1307 A massage therapist sued her employer under the California Fair Employment and Housing Act for failing to prevent two customers from sexually harassing her while she was massaging them. At trial the employer argued the jury should be instructed not to reach the issue of whether the employer failed to take reasonable steps to prevent sexual harassment unless the jury first found the plaintiff was subjected to actionable harassment i.e. harassment that is so severe and pervasive that it gives rise to a hostile work environment. The trial court denied the employers requested instruction. The jury found against the plaintiff on her sexual harassment claim concluding that while the plaintiff was subjected to harassing conduct on account of her sex such harassment was not severe or pervasive. However the jury found in favor of the plaintiff on her failure-to-prevent claim. The employer appealed. The Court of Appeal Second. Dist Div. Five reversed with directions to enter judgment in favor of the employer. The trial court should have instructed the jury as requested by the employer and judgment notwithstanding the verdict should have been granted because there cannot be a valid claim for failure to take reasonable steps necessary to prevent sexual harassment if as here the jury finds that the sexual harassment that occurred was not sufficiently severe or pervasive as to result in liability for harassment as a threshold matter. To prevail in a disparate-treatment claim under Title VII a job applicant need show only that her need for an accommodation was a motivating factor in the employers decision. Equal Employment Opportunity Commission v. Abercrombie Fitch Stores Inc. 2015 135 S.Ct. 2028 Samantha Elauf sought employment with Abercrombie Fitch but was not hired because she wore a headscarf that violated Abercrombies Look Policy. The Equal Employment Opportunity Commission brought suit against Abercrombie under Title VII for failing to accommodate Elaufs need for a religious accommodation i.e. an exemption from the Look Policy for her headscarf. The district court found against Abercrombie but the Tenth Circuit reversed reasoning that the prospective employee must provide the prospective employer with actual knowledge of her need for a religious accommodation before the employer may be liable for disparate treatment under Title VII. The United States Supreme Court reversed. An employment applicant need not show she provided the employer with actual knowledge of the need for a religious accommodation in order to prevail on a Title VII claim she need only show that her need for an accommodation was a motivating factor in the employers decision. vi verdict green sheets Volume 2 2015 INSURANCE Vandalism exclusion did not apply to bar coverage for re lit by vagrant that got out of control. Ong v. Fire Insurance Exchange 2015 235 Cal.App.4th 901 The insureds property which was vacant suffered fire damage when a vagrant lit a fire on the kitchen floor possibly to keep warm. The insurer denied coverage because the policy excluded property damage caused by vandalism at properties sitting vacant for more than 30 days. The term vandalism was undefined in the policy. The insured sued arguing that coverage should be provided because the cause of damage was a negligently-tended fire not willful and malicious conduct. The trial court granted summary adjudication for the insurer. The insured appealed. The Court of Appeal Second. Dist. Div. One reversed. The court concluded that vandalism requires malice and there was no evidence of malice in this case because the evidence raised a triable issue of fact that the vagrant made the fire only to keep warm not to damage the house. Exclusion for intellectual property rights applies to right of publicity claims. Alterra Excess and Surplus Insurance Company v. Snyder 2015 234 Cal.App.4th 1390 The estate of creative personality R. Buckminster Bucky Fuller sued Maxfield Overton Holdings for using the Bucky name to market products without authorization. The complaint alleged causes of action for unfair competition trademark infringement and unauthorized appropriation of name and likeness. Maxfields insurer denied coverage for the lawsuit and sought an adjudication in the trial court that the policys exclusion for personal or advertising injury arising out of the infringement of copyright patent trademark trade secret or other intellectual property rights precluded coverage. The trial court agreed with the insurer. The Court of Appeal First Dist. Div. Two affirmed holding that the exclusions reference to intellectual property rights clearly applied to violations of the right of publicity so the insured could have had no reasonable expectation of coverage for the estates claims. LABOR EMPLOYMENT Employers are not liable failing to take reasonable steps necessary to prevent sexual harassment where any sexual harassment that occurred was not sufciently severe or pervasive as to result in liability for harassment itself. Dickson v. Burke Williams Inc. 2015 234 Cal.App.4th 1307 A massage therapist sued her employer under the California Fair Employment and Housing Act for failing to prevent two customers from sexually harassing her while she was massaging them. At trial the employer argued the jury should be instructed not to reach the issue of whether the employer failed to take reasonable steps to prevent sexual harassment unless the jury first found the plaintiff was subjected to actionable harassment i.e. harassment that is soactionable harassment i.e. harassment that is soactionable severe and pervasive that it gives rise to a hostile work environment. The trial court denied the employers requested instruction. The jury found against the plaintiff on her sexual harassment claim concluding that while the plaintiff was subjected to harassing conduct on account of her sex such harassment was not severe or pervasive. However the jury found in favor of the plaintiff on her failure-to-prevent claim. The employer appealed. The Court of Appeal Second. Dist Div. Five reversed with directions to enter judgment in favor of the employer. The trial court should have instructed the jury as requested by the employer and judgment notwithstanding the verdict should have been granted because there cannot be a valid claim for failure to take reasonable steps necessary to prevent sexual harassment if as here the jury finds that the sexual harassment that occurred was not sufficiently severe or pervasive as to result in liability for harassment as a threshold matter. To prevail in a disparate-treatment claim under Title VII a job applicant need show only that her need for an accommodation was a motivating factor in the employers decision. Equal Employment Opportunity Commission v. Abercrombie Fitch Stores Inc. 2015 135 S.Ct. 2028 Samantha Elauf sought employment with Abercrombie Fitch but was not hired because she wore a headscarf that violated Abercrombies Look Policy. The Equal Employment Opportunity Commission brought suit against Abercrombie under Title VII for failing to accommodate Elaufs need for a religious accommodation i.e. an exemption from the Look Policy for her headscarf. The district court found against Abercrombie but the Tenth Circuit reversed reasoning that the prospective employee must provide the prospective employer with actual knowledge of her need for a religious accommodation before the employer may be liable for disparate treatment under Title VII. The United States Supreme Court reversed. An employment applicant need not show she provided the employer with actual knowledge of the need for a religious accommodation in order to prevail on a Title VII claim she need only show that her need for an accommodation was a motivating factor in the employers decision. Volume 2 2015 verdict green sheets vii A co-employer with knowledge of the other employers misclassication of employees may be liable to the Labor Commissioner for administrative penalties under Labor Code section 226.8 but that statute creates no private right of action. Noe v. Superior Court Levy Premium Foodservice Limited Partnership 2015 237 Cal.App.4th 316 AEG the owner of some sports venues contracted with Levy to provide food and beverage services at those venues. Levy in turn contracted with Canvas to sell concessions in the aisles during sporting events. Plaintiffs who were employed by Canvas sued AEG and Levy defendants alleging that defendants were co-employers with Canvas and therefore liable for Canvass violation of various labor laws including misclassifying plaintiffs as independent contractors in violation of Labor Code section 226.8. Defendants obtained summary adjudication that they could not be liable under section 226.8 because they were not the ones who engaged in willful misclassification of workers as the statute requires. The plaintiffs sought a writ of mandate. The Court of Appeal Dist. Two Div. Seven affirmed the summary adjudication but for a reason different from that given by the trial court. The court held section 226.8 creates no private right of action and rejected plaintiffs argument that an employer may be held vicariously liable under section 226.8 based solely on the acts of a co-employer. The court did hold however that 226.8 is not limited to employers who actually make the misclassification decision and extends to joint employers when they have actual knowledge of and acquiesce in a co-employers misclassification of its employees . PROFESSIONAL RESPONSIBILITY Even with an ethical screen a law rm may not handle a case in which a member of the rm has received the opponents condential information as a settlement ofcer in a court- sponsored program. Castaneda v. Superior Court Perrin Bernard Supowitz Inc. 2015 237 Cal.App.4th 1434 In this employment dispute an attorney served as a volunteer settlement officer through the Los Angeles Superior Court CRASH program. The case did not settle and later the employer substituted in another member of the attorneys firm to represent it. The employee moved to disqualify the firm on the ground that the attorneys conflict was imputed to her firm and could not be avoided with screening procedures. The trial court denied the motion and the employee sought a petition for writ of mandate. The Court of Appeal Second Dist. Div. Eight issued the writ. The court clarified the rule of Cho v. Superior Court 1995 39 Cal.App.4th 113 which held that when a judicial officer receives confidential information from a party while presiding over a settlement conference but later joins a law firm that firm may not represent an opposing party in the same action screening procedures notwithstanding. The Cho rule applies equally to attorneys who volunteer to serve as settlement officers. So long as the attorney had ex parte communications during the settlement conference with the party the attorneys firm later seeks to oppose the exchange of confidential information is conclusively presumed giving rise to a conflict imputed to the attorneys entire firm. No screening procedures would be sufficient to ensure public trust in the legal system under these circumstances and the importance of preserving public trust in the legal system outweighed the risk of chilling attorney participation in the CRASH program. See also Acacia Patent Acquisition LLC v. Superior Court Reddy 2015 234 Cal.App.4th 1091 where law firms representation of an attorney in a fee dispute gave the law firm access to the attorneys clients privileged information the law firm was disqualified from later opposing the attorneys client in another matter substantially related to the matter giving rise to the fee dispute. Volume 2 2015 verdict green sheets vii A co-employer with knowledge of the other employers misclassication of employees may be liable to the Labor Commissioner for administrative penalties under Labor Code section 226.8 but that statute creates no private right of action. Noe v. Superior Court Levy Premium Foodservice Limited Partnership 2015 237 Cal.App.4th 316 AEG the owner of some sports venues contracted with Levy to provide food and beverage services at those venues. Levy in turn contracted with Canvas to sell concessions in the aisles during sporting events. Plaintiffs who were employed by Canvas sued AEG and Levy defendants alleging that defendants were co-employers with Canvas and therefore liable for Canvass violation of various labor laws including misclassifying plaintiffs as independent contractors in violation of Labor Code section 226.8. Defendants obtained summary adjudication that they could not be liable under section 226.8 because they were not the ones who engaged in willful misclassification of workers as the statute requires. The plaintiffs sought a writ of mandate. The Court of Appeal Dist. Two Div. Seven affirmed the summary adjudication but for a reason different from that given by the trial court. The court held section 226.8 creates no private right of action and rejected plaintiffs argument that an employer may be held vicariously liable under section 226.8 based solely on the acts of a co-employer. The court did hold however that 226.8 is not limited to employers who actually make the misclassification decision and extends to joint employers when they have actual knowledge of and acquiesce in a co-employers misclassification of its employees . PROFESSIONAL RESPONSIBILITY Even with an ethical screen a law rm may not handle a case in which a member of the rm has received the opponents condential information as a settlement ofcer in a court- sponsored program. Castaneda v. Superior Court Perrin Bernard Supowitz Inc. 2015 237 Cal.App.4th 1434 In this employment dispute an attorney served as a volunteer settlement officer through the Los Angeles Superior Court CRASH program. The case did not settle and later the employer substituted in another member of the attorneys firm to represent it. The employee moved to disqualify the firm on the ground that the attorneys conflict was imputed to her firm and could not be avoided with screening procedures. The trial court denied the motion and the employee sought a petition for writ of mandate. The Court of Appeal Second Dist. Div. Eight issued the writ. The court clarified the rule of Cho v. Superior Court 1995 39 Cal.App.4th 113 which held that when a judicial officer receives confidential information from a party while presiding over a settlement conference but later joins a law firm that firm may not represent an opposing party in the same action screening procedures notwithstanding. The Cho rule applies equally to attorneys who volunteer to serve as settlement officers. So long as the attorney had ex parte communications during the settlement conference with the party the attorneys firm later seeks to oppose the exchange of confidential information is conclusively presumed giving rise to a conflict imputed to the attorneys entire firm. No screening procedures would be sufficient to ensure public trust in the legal system under these circumstances and the importance of preserving public trust in the legal system outweighed the risk of chilling attorney participation in the CRASH program. See also Acacia Patent Acquisition LLC v. Superior Court Reddy 2015 234 Cal.App.4th 1091 where law firms representation of an attorney in a fee dispute gave the law firm access to the attorneys clients privileged information the law firm was disqualified from later opposing the attorneys client in another matter substantially related to the matter giving rise to the fee dispute. viii verdict green sheets Volume 2 2015 CONTRACTS Where an agreement makes contracting parties jointly and severally responsible parties may be sued in separate actions. DKN Holdings LLC v. Faerber 2015 61 Cal.4th 813 The lessor of a commercial property brought an action against three co-lessees for past due rents. The lessor dismissed without prejudice two of the parties and received a 3 million judgment against the third party which remains unsatisfied. The lease specified all lessees were jointly and severally responsible. The lessor then brought the present action against the other two lessees for the unpaid rent. The trial court sustained the two lessees demurrers without leave to amend. The Court of Appeal Fourth Dist. Division Two affirmed. It held the complaint does not and cannot state a cause of action against the lessees for monies due under the lease because the lessors claims against the lessees in the present action are barred by the claim preclusion aspect of the res judicata doctrine. The California Supreme Court reversed. The Court of Appeal erred in relying on perhaps misleading statements in prior case law about preclusion principles. Here neither claim preclusion nor issue preclusion could bar the claim against the lessees dismissed from the earlier action because they were not parties to that action or in privity with the parties. The court held that basic contract and civil procedural rules provide that parties who are jointly and severally liable on an obligation may be sued in separate actions. The breaching party bears the burden to show the nonbreaching party would have lost money had the contract been performed. Agam v. Gavra 2015 236 Cal.App.4th 91 The parties in this case formed a partnership to develop real estate. When disagreements among the partners and trouble in the real estate market threated the financial viability of the partnership the defendant partners decided to take certain actions to protect their own financial interests at the expense of the partnerships interests. The plaintiff partner sued the defendant partners for breaching the partnership agreement and sought to recover reliance damages. In a bench trial the trial court found for the plaintiff. The plaintiffs appealed arguing among other things that the partnership would have been a losing proposition for all involved and that trial court improperly placed the burden on them to show the amount the plaintiff would have lost had they performed. The Court of Appeal Sixth Dist. affirmed. Once the plaintiff in a breach of contract action has shown expenditures undertaken in reliance on a contract the burden shifts to the breaching defendant to show which of the plaintiffs expenses in reliance on the contract were unnecessary and how much the plaintiff would have lost had the defendant performed. INTELLECTUAL PROPERTY Supreme Court reafrms that patent holders may not collect royalties after the patent term expires. Kimble et al. v. Marvel Enterprises Inc. 2015 135 S.Ct. 2401 In 1990 Stephen Kimble patented a toy that enabled users to shoot foam strings from the palms of their hands a l Spiderman. In 1997 Kimble sued Marvel Entertainment for patent infringement arising out of Marvels marketing of his toy without permission or payment. The parties settled and their agreement provided that Marvel would pay Kimble three percent royalties on its sales of the product indefinitely. Subsequently Marvel learned of the United State Supreme Court decision in Brulotte v. Thys Co. 379 U. S. 29 1964 in which the Court held that a patent holder cannot charge royalties for the use of his invention after the patent term 20 years expires. Marvel suedin federal district court seeking a declaration that it would not have to pay Kimble any royalties after 2010. The district court entered judgment for Marvel. The United States Supreme Court affirmed. Under the principle of stare decisis the rule of Brulotte remains the law and any change to the rule must come from Congress. See also Teva Pharmaceuticals USA Inc. et al. v. Sandoz Inc. 2015 135 S.Ct. 831 district court patent claim construction rulings involving factual findings dependent on extrinsic evidence should be reviewed for clear error not de novo as the Federal Circuit had held See also Hana Financial Inc. v. Hana Bank 2015 135 S.Ct. 906 whether a trademark is sufficiently similar to an older version of the mark to warrant tackingi.e. use of the first marks priority dateis a jury question See also BB Hardware Inc. v. Hargis Industries Inc. et al. 2015 135 S.Ct. 1293 a Trademark Trial and Appeal Board finding concerning whether consumers are going to be confused by a similar mark can be binding on a federal district court later deciding the same question See also Commil USA LLC v. Cisco Systems Inc. 2015 135 S.Ct. 1920 a companys good faith belief that a patent is invalid is not a defense to induced infringement viii verdict green sheets Volume 2 2015 CONTRACTS Where an agreement makes contracting parties jointly and severally responsible parties may be sued in separate actions. DKN Holdings LLC v. Faerber 2015 61 Cal.4th 813 The lessor of a commercial property brought an action against three co-lessees for past due rents. The lessor dismissed without prejudice two of the parties and received a 3 million judgment against the third party which remains unsatisfied. The lease specified all lessees were jointly and severally responsible. The lessor then brought the present action against the other two lessees for the unpaid rent. The trial court sustained the two lessees demurrers without leave to amend. The Court of Appeal Fourth Dist. Division Two affirmed. It held the complaint does not and cannot state a cause of action against the lessees for monies due under the lease because the lessors claims against the lessees in the present action are barred by the claim preclusion aspect of the res judicata doctrine. The California Supreme Court reversed. The Court of Appeal erred in relying on perhaps misleading statements in prior case law about preclusion principles. Here neither claim preclusion nor issue preclusion could bar the claim against the lessees dismissed from the earlier action because they were not parties to that action or in privity with the parties. The court held that basic contract and civil procedural rules provide that parties who are jointly and severally liable on an obligation may be sued in separate actions. The breaching party bears the burden to show the nonbreaching party would have lost money had the contract been performed. Agam v. Gavra 2015 236 Cal.App.4th 91 The parties in this case formed a partnership to develop real estate. When disagreements among the partners and trouble in the real estate market threated the financial viability of the partnership the defendant partners decided to take certain actions to protect their own financial interests at the expense of the partnerships interests. The plaintiff partner sued the defendant partners for breaching the partnership agreement and sought to recover reliance damages. In a bench trial the trial court found for the plaintiff. The plaintiffs appealed arguing among other things that the partnership would have been a losing proposition for all involved and that trial court improperly placed the burden on them to show the amount the plaintiff would have lost had they performed. The Court of Appeal Sixth Dist. affirmed. Once the plaintiff in a breach of contract action has shown expenditures undertaken in reliance on a contract the burden shifts to the breaching defendant to show which of the plaintiffs expenses in reliance on the contract were unnecessary and how much the plaintiff would have lost had the defendant performed. INTELLECTUAL PROPERTY Supreme Court reafrms that patent holders may not collect royalties after the patent term expires. Kimble et al. v. Marvel Enterprises Inc. 2015 135 S.Ct. 2401 In 1990 Stephen Kimble patented a toy that enabled users to shoot foam strings from the palms of their hands a l Spiderman. In 1997 Kimble sued Marvel Entertainment for patent infringement arising out of Marvels marketing of his toy without permission or payment. The parties settled and their agreement provided that Marvel would pay Kimble three percent royalties on its sales of the product indefinitely. Subsequently Marvel learned of the United State Supreme Court decision in Brulotte v. Thys Co. 379 U. S. 29 1964 in which the Court held that a patent holder cannot charge royalties for the use of his invention after the patent term 20 years expires. Marvel suedin federal district court seeking a declaration that it would not have to pay Kimble any royalties after 2010. The district court entered judgment for Marvel. The United States Supreme Court affirmed. Under the principle of stare decisis the rule of Brulotte remains the law and any change toBrulotte remains the law and any change toBrulotte the rule must come from Congress. See also Teva Pharmaceuticals USA Inc. et al. v. Sandoz Inc. 2015 135 S.Ct. 831 district court patent claim construction rulings involving factual findings dependent on extrinsic evidence should be reviewed for clear error not de novo as the Federal Circuit had held See also Hana Financial Inc. v. Hana Bank 2015 135 S.Ct. 906 whether a trademark is sufficiently similar to an older version of the mark to warrant tackingi.e. use of the first marks priority dateis a jury question See also BB Hardware Inc. v. Hargis Industries Inc. et al. 2015 135 S.Ct. 1293 a Trademark Trial and Appeal Board finding concerning whether consumers are going to be confused by a similar mark can be binding on a federal district court later deciding the same question See also Commil USA LLC v. Cisco Systems Inc. 2015 135 S.Ct. 1920 a companys good faith belief that a patent is invalid is not a defense to induced infringement Volume 2 2015 verdict green sheets ix Federal District Court Cancels Washington Redskins Trademarks as Disparaging to Native Americans Pro-Football Inc. v. Blackhorse et al. Case No. 113-cv- 01043-GBL-IDD E.D. Va. July 8 2015. The US Patent and Trademark Office canceled the trademark registrations for Redskins on the ground that it disparaged Native American within the meaning of Section 2 a 1052 a of the Lanham Act which prohibits registration of any matter which may disparage persons or bring them into contempt or disrepute. The team appealed to Federal District Court arguing there was inadequate evidence that the Redskins trademarks used for over 80 years disparaged a substantial composite of Native Americans at the time of the registrations between 1967-1990. The team also contended that the statute on which the Native Americans relied violated the teams rights under the First and Fifth Amendments of the Constitution. On summary judgment the District Court upheld the finding of the Patent and Trademark Office holding that there was no need for the Native Americans to prove intent to disparage Native Americans. The district court also rejected the constitutional challenges to the statute and ordered cancellation of the Redskins trademark registrations. CASES PENDING IN THE CALIFORNIA SUPREME COURT Addressing whether claims for public injunctive relief may be compelled to arbitration in light of Concepcion. McGill v. Citibank N.A. S224086 Review Granted April 1 2015 The defendant sought to compel arbitration of this consumer class action seeking damages and injunctive relief . Following California Supreme Court precedent that had held that California public policy prohibits arbitration of claims for public injunctive relief brought under the Unfair Competition Law or the Consumers Legal Remedies Act and that the Federal Arbitration Act FAA does not preempt that state public policy the trial court declined to compel arbitration of the claims for injunctive relief. The Court of Appeal Fourth Dist. Div. Three held that the California Supreme Court precedent the trial court relied on did not survive the U.S. Supreme Courts ATT Mobility LLC v. Concepcion __ U.S. __ 131 S. Ct. 1740 2011 decision which held that the FAA preempts state laws such as bans on class arbitration waivers that prohibit outright the arbitration of a particular type of claim or that otherwise stand as an obstacle to the FAAs objective of ensuring that arbitration agreements are enforced according to their terms. Accordingly the court reversed the decision of the trial court and directed the trial court to order all of plaintiffs claims to arbitration. The Supreme Court granted review to address the following issue Does the Federal Arbitration Act 9 U.S.C. 1 et seq. as interpreted inATT Mobility LLC v. Concepcion2011 563 U.S. 321 preempt the California rule Broughton v. Cigna Healthplans1999 21 Cal.4th 1066Cruz v. PacifiCare Health Systems Inc.2003 30 Cal.4th 303 that statutory claims for public injunctive relief are not subject to compulsory private arbitration See Securitas Security Services USA Inc. v. Superior Court Edwards 2015 234 Cal.App.4th 1109 where PAGA waiver was unenforceable and not severable from the remainder of the arbitration agreement the entire arbitration agreement was unenforceable Volume 2 2015 verdict green sheets ix Federal District Court Cancels Washington Redskins Trademarks as Disparaging to Native Americans Pro-Football Inc. v. Blackhorse et al. Case No. 113-cv- 01043-GBL-IDD E.D. Va. July 8 2015. The US Patent and Trademark Office canceled the trademark registrations for Redskins on the ground that it disparaged Native American within the meaning of Section 2 a 1052 a of the Lanham Act which prohibits registration of any matter which may disparage persons or bring them into contempt or disrepute. The team appealed to Federal District Court arguing there was inadequate evidence that the Redskins trademarks used for over 80 years disparaged a substantial composite of Native Americans at the time of the registrations between 1967-1990. The team also contended that the statute on which the Native Americans relied violated the teams rights under the First and Fifth Amendments of the Constitution. On summary judgment the District Court upheld the finding of the Patent and Trademark Office holding that there was no need for the Native Americans to prove intent to disparage Native Americans. The district court also rejected the constitutional challenges to the statute and ordered cancellation of the Redskins trademark registrations. CASES PENDING IN THE CALIFORNIA SUPREME COURT Addressing whether claims for public injunctive relief may be compelled to arbitration in light of Concepcion. McGill v. Citibank N.A. S224086 Review Granted April 1 2015 The defendant sought to compel arbitration of this consumer class action seeking damages and injunctive relief . Following California Supreme Court precedent that had held that California public policy prohibits arbitration of claims for public injunctive relief brought under the Unfair Competition Law or the Consumers Legal Remedies Act and that the Federal Arbitration Act FAA does not preempt that state public policy the trial court declined to compel arbitration of the claims for injunctive relief. The Court of Appeal Fourth Dist. Div. Three held that the California Supreme Court precedent the trial court relied on did not survive the U.S. Supreme Courts ATT Mobility LLC v. Concepcion __ U.S. __ 131 S. Ct. 1740 2011 decision which held that the FAA preempts state laws such as bans on class arbitration waivers that prohibit outright the arbitration of a particular type of claim or that otherwise stand as an obstacle to the FAAs objective of ensuring that arbitration agreements are enforced according to their terms. Accordingly the court reversed the decision of the trial court and directed the trial court to order all of plaintiffs claims to arbitration. The Supreme Court granted review to address the following issue Does the Federal Arbitration Act 9 U.S.C. 1 et seq. as interpreted inATT Mobility LLC v. Concepcion2011 563 U.S. 321 preempt the California rule Broughton v. Cigna Healthplans1999 21 Cal.4th 1066Cruz v. PacifiCare Health Systems Inc.2003 30 Cal.4th 303 that statutory claims for public injunctive relief are not subject to compulsory private arbitration See Securitas Security Services USA Inc. v. Superior Court Edwards 2015 234 Cal.App.4th 1109 where PAGA waiver was unenforceable and not severable from the remainder of the arbitration agreement the entire arbitration agreement was unenforceable x verdict green sheets Volume 2 2015 Addressing whether employees may remain on call during rest breaks. Augustus v. ABM Security Services S224853 Review Granted April 29 2015 The plaintiff and other former security guards alleged that defendant employer failed to provide legally required rest periods in that the security guards had to remain on-call during their rest breaks. In granting the plaintiffs motions for class certification and summary adjudication the trial court held that an employer must relieve its employees of all duties during rest breaks including the obligation to remain on-call. The Court of Appeal Second Dist. Div. One reversed holding that Labor Code section 226.7 does not require that an employee be relieved of all duties and instead requires only that the employee not be required to work. According to the Court of Appeal remaining on-call did not itself constitute performing work. The Supreme Court granted review to address the following issues 1 Do Labor Code 226.7 and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks 2 Are security guards who remain on call during rest breaks performing work during that time under the analysis ofMendiola v. CPS Security Solutions Inc.2015 60 Cal.4th 833 Addressing the validity of an Industrial Wage Commission Order permitting meal period waivers. Gerard v. Orange Coast Memorial Medical Center S225205 Review Granted May 20 2015 Although Labor Code section 512 requires two meal periods for shifts longer than 12 hours section 11D of Industrial Wage Commission IWC Order No. 5-2001 authorizes employees in the health care industry to waive one of those meal periods for shifts longer than eight hours. Plaintiff health care workers who signed second meal-period waivers and occasionally worked shifts longer than twelve hours without being provided a second meal period sued for Labor Code violations. The Court of Appeal Fourth Dist. Div. Three held that the IWC order was invalid to the extent it authorized waivers of second meal breaks on shifts exceeding twelve hours. The Supreme Court granted review. The questions presented are 1 whether the health care industry meal-period waiver provision in section 11D of IWC Order No. 5-2001 is invalid under Labor Code section 512 subdivision a and 2 whether the decision of the Court of Appeal partially invalidating the Wage Order should be applied retroactively Addressing whether a trial court may excise allegations of protected activity when ruling on an anti-SLAPP motion. Baral v. Schnitt S225090 Review Granted May 13 2015 In this business-related dispute the plaintiff brought eighteen causes of action alleging the defendant engaged in fraud and multiple breaches of fiduciary duty. The defendant filed a special motion to strike under Code of Civil Procedure section 425.16 the anti-SLAPP statute because some of the allegations were based on protected activity within the purview of the anti-SLAPP statute. Applying existing authority the trial court held that the anti-SLAPP statute does not authorize a court to grant such a motion after excising allegations concerning protected petitioning conduct from a mixed cause of action that also contains meritorious allegations not within the purview of the statute. The Court of Appeal Second Dist. Div. One affirmed agreeing that the statute applies to causes of action or complaints not individual allegations. The Supreme Court granted review of the following issue does the anti-SLAPP statute authorize a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute x verdict green sheets Volume 2 2015 Addressing whether employees may remain on call during rest breaks. Augustus v. ABM Security Services S224853 Review Granted April 29 2015 The plaintiff and other former security guards alleged that defendant employer failed to provide legally required rest periods in that the security guards had to remain on-call during their rest breaks. In granting the plaintiffs motions for class certification and summary adjudication the trial court held that an employer must relieve its employees of all duties during rest breaks including the obligation to remain on-call. The Court of Appeal Second Dist. Div. One reversed holding that Labor Code section 226.7 does not require that an employee be relieved of all duties and instead requires only that the employee not be required to work. According to the Court of Appeal remaining on-call did not itself constitute performing work. The Supreme Court granted review to address the following issues 1 Do Labor Code 226.7 and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks 2 Are security guards who remain on call during rest breaks performing work during that time under the analysis ofMendiola v. CPS Security Solutions Inc.2015 60 Cal.4th 833 Addressing the validity of an Industrial Wage Commission Order permitting meal period waivers. Gerard v. Orange Coast Memorial Medical Center S225205 Review Granted May 20 2015 Although Labor Code section 512 requires two meal periods for shifts longer than 12 hours section 11D of Industrial Wage Commission IWC Order No. 5-2001 authorizes employees in the health care industry to waive one of those meal periods for shifts longer than eight hours. Plaintiff health care workers who signed second meal-period waivers and occasionally worked shifts longer than twelve hours without being provided a second meal period sued for Labor Code violations. The Court of Appeal Fourth Dist. Div. Three held that the IWC order was invalid to the extent it authorized waivers of second meal breaks on shifts exceeding twelve hours. The Supreme Court granted review. The questions presented are 1 whether the health care industry meal-period waiver provision in section 11D of IWC Order No. 5-2001 is invalid under Labor Code section 512 subdivision a and 2 whether the decision of the Court of Appeal partially invalidating the Wage Order should be applied retroactively Addressing whether a trial court may excise allegations of protected activity when ruling on an anti-SLAPP motion. Baral v. Schnitt S225090 Review Granted May 13 2015 In this business-related dispute the plaintiff brought eighteen causes of action alleging the defendant engaged in fraud and multiple breaches of fiduciary duty. The defendant filed a special motion to strike under Code of Civil Procedure section 425.16 the anti-SLAPP statute because some of the allegations were based on protected activity within the purview of the anti-SLAPP statute. Applying existing authority the trial court held that the anti-SLAPP statute does not authorize a court to grant such a motion after excising allegations concerning protected petitioning conduct from a mixed cause of action that also contains meritorious allegations not within the purview of the statute. The Court of Appeal Second Dist. Div. One affirmed agreeing that the statute applies to causes of action or complaints not individual allegations. The Supreme Court granted review of the following issue does the anti-SLAPP statute authorize a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute Volume 2 2015 verdict green sheets xi Addressing intentional interference with economic relations in the context of competitive bidding for public works contracts. Roy Allan Slurry Seal Inc. v. American Asphalt South Inc. S225398 Review Granted June 10 2015 American Asphalt South Inc. American outbid two other contractors on 23 public works cases totaling 14.6 million dollars. The contractors sued American for intentional interference with prospective economic advantage claiming American was able to submit the lowest bid only because it paid its workers less than is required by Labor Code sections 1770 and 1771. American demurred contending the plaintiff contractors did not have the required existing relationship and reasonable probability of being awarded the contracts that was required to show intentional interference with prospective economic advantage. The trial court sustained the demurrer but the Court of Appeal Second Dist. Div. Eight reversed holding that 1 a bidder on a government contract who submits a superior bid and loses out only because a competitor manipulated the bid selection process through illegal conduct has been the victim of actionable intentional interference and 2 an actionable economic expectancy arises once the public agency awards a contract to an unlawful bidder thereby signaling that the contract would have gone to the second lowest qualifying bidder. The Supreme Court granted review. The case presents the following issues 1 In the context of competitive bidding on a public works contract may the second lowest bidder state a claim for intentional interference with prospective economic advantage against the winning bidder based on an allegation that the winning bidder did not fully comply with Californias prevailing wage law after the contract was awarded 2 To state a cause of action for intentional interference with prospective economic advantage must the plaintiff allege that it had a preexisting economic relationship with a third party with probable future benefit that preceded or existed separately from defendants interference or is it sufficient for the plaintiff to allege that its economic expectancy arose at the time the public agency awarded the contract to the low bidder Addressing scope of privilege for attorney billing records. County of Los Angeles Board of Supervisors v. Superior Court S226645 Review Granted July 8 2015 The ACLU filed a request under the California Public Records Act CPRA seeking invoices from outside attorneys hired by the Los Angeles County Board of Supervisors and the Los Angeles County Counsel the County to defend against lawsuits in which county jail inmates claimed they were subjected to excessive force. The ACLU wanted the records to investigate whether the County was spending excessive amounts defending against the lawsuits. The County withheld the billing records on the ground they were attorney- client privileged communications exempt from disclosure under the CPRAs catch-all provision which provides that the government may withhold documents if the public interest in confidentiality outweighs the interest in disclosure so the ACLU sought a petition for writ of mandate from the superior court. The superior court granted the petition but the Court of Appeal reversed. The Court of Appeal concluded that attorney invoices are protected by the attorney-client privilege and the interest in preserving attorney-client confidences outweighed in the interest in public disclosure of the invoices. The Supreme Court granted review to address whether invoices for legal services sent to the County of Los Angeles by outside counsel are within the scope of the attorney-client privilege and exempt from disclosure under the CPRA even with all references to attorney opinions advice and similar information redacted. Volume 2 2015 verdict green sheets xi Addressing intentional interference with economic relations in the context of competitive bidding for public works contracts. Roy Allan Slurry Seal Inc. v. American Asphalt South Inc. S225398 Review Granted June 10 2015 American Asphalt South Inc. American outbid two other contractors on 23 public works cases totaling 14.6 million dollars. The contractors sued American for intentional interference with prospective economic advantage claiming American was able to submit the lowest bid only because it paid its workers less than is required by Labor Code sections 1770 and 1771. American demurred contending the plaintiff contractors did not have the required existing relationship and reasonable probability of being awarded the contracts that was required to show intentional interference with prospective economic advantage. The trial court sustained the demurrer but the Court of Appeal Second Dist. Div. Eight reversed holding that 1 a bidder on a government contract who submits a superior bid and loses out only because a competitor manipulated the bid selection process through illegal conduct has been the victim of actionable intentional interference and 2 an actionable economic expectancy arises once the public agency awards a contract to an unlawful bidder thereby signaling that the contract would have gone to the second lowest qualifying bidder. The Supreme Court granted review. The case presents the following issues 1 In the context of competitive bidding on a public works contract may the second lowest bidder state a claim for intentional interference with prospective economic advantage against the winning bidder based on an allegation that the winning bidder did not fully comply with Californias prevailing wage law after the contract was awarded 2 To state a cause of action for intentional interference with prospective economic advantage must the plaintiff allege that it had a preexisting economic relationship with a third party with probable future benefit that preceded or existed separately from defendants interference or is it sufficient for the plaintiff to allege that its economic expectancy arose at the time the public agency awarded the contract to the low bidder Addressing scope of privilege for attorney billing records. County of Los Angeles Board of Supervisors v. Superior Court S226645 Review Granted July 8 2015 The ACLU filed a request under the California Public Records Act CPRA seeking invoices from outside attorneys hired by the Los Angeles County Board of Supervisors and the Los Angeles County Counsel the County to defend against lawsuits in which county jail inmates claimed they were subjected to excessive force. The ACLU wanted the records to investigate whether the County was spending excessive amounts defending against the lawsuits. The County withheld the billing records on the ground they were attorney- client privileged communications exempt from disclosure under the CPRAs catch-all provision which provides that the government may withhold documents if the public interest in confidentiality outweighs the interest in disclosure so the ACLU sought a petition for writ of mandate from the superior court. The superior court granted the petition but the Court of Appeal reversed. The Court of Appeal concluded that attorney invoices are protected by the attorney-client privilege and the interest in preserving attorney-client confidences outweighed in the interest in public disclosure of the invoices. The Supreme Court granted review to address whether invoices for legal services sent to the County of Los Angeles by outside counsel are within the scope of the attorney-client privilege and exempt from disclosure under the CPRA even with all references to attorney opinions advice and similar information redacted. xii verdict green sheets Volume 2 2015 Addressing insurance commissioners authority to promulgate regulations under the authority of the Unfair Insurance Practices Act. Association of California Ins. Companies v. Jones S226529 Review Granted July 15 2015 The Insurance Commissioner promulgated a regulation under the authority of the Unfair Insurance Practices Act UIPA Insurance Code sections 790-790.15 that controls the way property insurers communicate replacement cost information to homeowners. In an action brought by insurer trade associations the trial court ruled that the Commissioner did not have authority to issue the regulation and the Court of Appeal affirmed. 1 The UIPA read as a whole did not give the Commissioner authority to promulgate the regulation 2 the Commissioners reliance on section 790.10 did not sufficiently credit other portions of the UIPA and was not consistent with the structure of the UIPA and 3 the legislative evolution of the UIPA as well as other sections in the Insurance Code supported the conclusion that the Commissioner was without authority to promulgate the regulation. The Supreme Court granted review of the following issues 1 Does the UIPA give the Insurance Commissioner authority to promulgate a regulation that sets forth requirements for communicating replacement value and states that noncompliance with the regulation constitutes a misleading statement and therefore an unfair trade practice for purposes of the act 2 Does the Insurance Commissioner have the statutory authority to promulgate a regulation specifying that the communication of a replacement cost estimate that omits one or more of the components in subdivisions a-e of section 2695.183 of title 10 of the California Code of Regulations is a misleading statement with respect to the business of insurance xii verdict green sheets Volume 2 2015 Addressing insurance commissioners authority to promulgate regulations under the authority of the Unfair Insurance Practices Act. Association of California Ins. Companies v. Jones S226529 Review Granted July 15 2015 The Insurance Commissioner promulgated a regulation under the authority of the Unfair Insurance Practices Act UIPA Insurance Code sections 790-790.15 that controls the way property insurers communicate replacement cost information to homeowners. In an action brought by insurer trade associations the trial court ruled that the Commissioner did not have authority to issue the regulation and the Court of Appeal affirmed. 1 The UIPA read as a whole did not give the Commissioner authority to promulgate the regulation 2 the Commissioners reliance on section 790.10 did not sufficiently credit other portions of the UIPA and was not consistent with the structure of the UIPA and 3 the legislative evolution of the UIPA as well as other sections in the Insurance Code supported the conclusion that the Commissioner was without authority to promulgate the regulation. The Supreme Court granted review of the following issues 1 Does the UIPA give the Insurance Commissioner authority to promulgate a regulation that sets forth requirements for communicating replacement value and states that noncompliance with the regulation constitutes a misleading statement and therefore an unfair trade practice for purposes of the act 2 Does the Insurance Commissioner have the statutory authority to promulgate a regulation specifying that the communication of a replacement cost estimate that omits one or more of the components in subdivisions a-e of section 2695.183 of title 10 of the California Code of Regulations is a misleading statement with respect to the business of insurance Volume 2 2015 verdict 19 Kern County Report ffective as of May 2015 the CaseFax e-fax system for Civil case filings is no longer being used or maintained by the Superior Court of Kern County. The Court has a new system for Civil case filings Odyssey File and Serve e-filing available for use. Information about the system is available on the courts website. A helpful tip Registering with the Kern County website before using the Kern County case filings search makes searching much easier and offers more complete results. Los Angeles County Report n July the Superior Court expanded the required use of its on-line Court Reservation System CRS for several independent calendar departments. Parties with a case assigned to these courtrooms must reserve a date for law and motion hearings via CRS on the Courts website at www.lacourt.org under LA Court Online Court Reservation System and must also use CRS to continue motions. Make sure to check the Courts website to see if your department requires use of the CRS and continue to check as additional Departments continue to be added to the list. Note Fees are due at the time the reservation is made and once the hearing date is reserved the fees are non-refundable. The Los Angeles Superior Court system is taking steps to encourage and increase use of its website for court related services. Over the past few months the Court has implemented reduced fee structures for its website functions. For example registered users may now conduct up to 10 name searches per month at a fee of 1 per search formerly 4.75 per search. Document purchases have also been reduced to 1 per page for the first 5 pages and 40 cents thereafter with a maximum of 40. There is no longer a minimum 7.50 per document charge. Orange County Report Several departments in Orange County Superior Court are now offering the ability to make video-conference appearances for hearings in conjunction with Court Call. Starting in Mid-June thirteen Courtrooms have made the video conference option available. The fee for the video conferencing is only 10 plus the usual 86 dollar Court Call fee. The court rooms currently participating including C6 C10 C14 C15 C17 C18 C23 C24 C32 CX101 CX103 CX104 and CX105. In mid-June a court clerk noticed irregularities in a particular case which led to the OC Superior Court to initiate an internal investigation of the matter. The Court discovered a large number of cases going back to 2010 with irregularities in the minutes all of which appeared to be continued on page 20 by Patrick J. Kearns 20 verdict Volume 2 2015 entered by a single employee. Authorities including the FBI have become involved and an investigation into the matter is pending. According to various news sources a lone clerk no longer an employee of the Superior Court may have been fixing cases such as DUIs to reduce penalties. Riverside County Report Riverside County is seeing a lot of new Courthouse activity. May saw the opening of the new Banning Justice Center located at 311 E. Ramsay Street in Banning CA. The new facility houses four trial courtrooms one large trafficsmall claims courtroom one large arraignment courtroom in-custody holding cells jury assembly space a staff training room clerks offices public service windows judicial chambers jury deliberation rooms and judicial libraryconference rooms. Menifee is also set to get some new digs. The State Public Works Board SPWB recently approved the acquisition of a site in Menifee for the new Riverside Mid-County Civil Courthouse. The new Mid-County Civil courthouse will be located on 3.8 acres in the Menifee Town Center and will be a part of the Citys envisioned future government center. It is expected to house nine courtrooms in over 89000 square feet and replace the aging Hemet Courthouse. Construction of the new courthouse is currently scheduled to begin in 2018 with an expected completion date in 2021. San Bernardino County Report n September 11 2015 ASCDC will be hosting a Brown Bag presentation with Presiding Judge Hon. Marsha Slough in Dept. S4 of the San Bernardino Superior Court entitled State of the Court San Bernardino County. San Bernardino has initiated a new hearing- date reservation program. Effective in April parties are now required to file their civil motion and pay the required fees within five 5 court days from the date they make the reservation for the hearing. Failure to submit continued on page 21 Around the Counties continued from page 19 Volume 2 2015 verdict 21 Around the Counties continued from page 20 moving papers within five 5 court days of reservation will result in the automatic cancellation of the reservation. Courtrooms S1-S4 are vacant and the Court is hopeful for appointments to fill them up. There has also been some discussion of San Bernardino potentially moving to a 5-day trial week from its typical 4-day trial week. Also the San Bernardino Superior Court court-run mediation program is completely booked for 2015 and is no longer settling MSCs or court-ordered mediation for the foreseeable future. San Diego County Report The new County Courthouse is beginning to take shape. The 555 million dollar construction is well underway and when completed will house more than 70 new Courtrooms in its 700000 plus square feet. Construction is expected to be completed by the end of 2016. Check out a live view camera-feed of the construction via the Superior Courts website at www. sdcourts.ca.gov. New Superior Court Rules are in progress and will go into effect on January 1 2016. You can view the proposed changes to the rules at www.sdcourts.ca.gov under the Rules of Court tab. Santa Barbara County Report On September 1 2015 the Santa Barbara Superior Court will begin accepting electronically filed documents in civil and family law cases supported by Tyler Technologys Odyssey case management system. Ventura County Report There is a new Case Management Conference attorney handling the MWF calendars in Department 22B. Genalin Riley is a registered nurse in both New Jersey and California. She attended UCLA Law and is a 1996 admittee who began with a small Century City firm before spending thirteen years with LASC as a research attorney and most recently as counsel for the State Bar Court. She will be a welcome addition to Department 22B. 22 verdict Volume 2 2015 Volume 2 2015 verdict 23 continued on page 24 taffing agencies and employee leasing organizations have difficulty obtaining workers compensation insurance for a reasonable price. The agencies and leasing organizations are sometimes tempted to misrepresent their true profession and organizations activities to obtain insurance at a more reasonable price. When the insurer learns that it has been deceived it has the option to unilaterally rescind the policy from its inception return the premium and refuse to pay claims. When the insurer has paid claims before it learned it was deceived the case as in American Home Assurance Company v. 99 Cents Only Stores Not Reported in Cal.Rptr.3d 2015 WL 3563133 Cal.App. 2 Dist. becomes more complicated. FACTS American Home Assurance Company National Union Fire Insurance Company of Pittsburgh PA and Illinois National Insurance Company collectively Insurers issued workers compensation policies to Optima Staffing Inc. for 2008 and 2009 based in part on Optimas representation it was a temporary staffing agency that directly hired trained and supervised employees deployed as temporary workers in various industries and not a professional employer organization. After defending and indemnifying 175 workers compensation Why Did It Take Adjusting 175 Claims Before the Insurer Learned it Was Deceived by Barry Zalma Esq. CFE claims the Insurers discovered Optima was operating as a professional employer organization for several temporary staffing agencies and their special employer clients. The Insurers rescinded the policies and filed an action for declaratory relief to confirm the rescission and for restitution from the temporary staffing agencies and the special employers. The Insurers appealed from the judgments entered after the trial court sustained without leave to amend the demurrers of several of the temporary staffing agencies and special employers and subsequently granted motions for judgment on the pleadings in favor of the remaining temporary staffing agencies and special employers. After receiving an application the Insurers issued a proposal stating that issuance of any workers compensation policy was conditioned upon Optima providing temporary staffing services only and not performing as a professional employer organization or employee leasing business. Optima accepted the proposal and a binder for insurance was issued including the same condition. Policies were subsequently issued for the policy period February 22 2008 through February 22 2009. Because Optima had no supervision or control over the employees the operative complaint alleged it greatly expanded the risk of workers compensation claims. Although most of the temporary staffing agencies and special employers answered the amended complaint on October 14 2011 two temporary staffing agencies demurred on grounds including there could be no rescission of the insurance policies as to them because they were not parties to the agreements between the Insurers and Optima and a contract cannot be rescinded when the rights of others have intervened and rescission would harm them. The agencies argued they had reasonably relied on the workers compensation policies procured by Optima and in turn had entered into agreements with special employers to provide temporary workers. The trial court sustained the demurrers without leave to amend. DISCUSSION Law Generally Governing Rescission An insurer may rescind an insurance contract when the insured has misrepresented or concealed material information even unintentionally in obtaining insurance coverage. To effect rescission the insurer must give notice to the insured and refund all premiums received before commencement of an action on the contract. 24 verdict Volume 2 2015 Insurance Fraud continued from page 23 When an insurance policy is rescinded it is void ab initio as if it never existed. Imperial Casualty Indemnity Co. v. Sogomonian 1988 198 Cal.App.3d 169 184 in other words defendants in law never were insureds under a policy of insurance LA Sound USA Inc. v. St. Paul Fire Marine Ins. Co. 2007 156 Cal.App.4th 1259 1267 rescission effectively renders the policy totally unenforceable from the outset so that there was never any coverage and no benefits are payable see generally Civ.Code 1688 contract is extinguished by its rescission. Consequently in addition to the refund of premiums by the insurer the insured must return any advance payments that have been received. In contrast the cancellation of a policy terminates coverage only prospectively. Rescission applies to all insureds under the contract including additional insureds unless the contract provides otherwise. When an insurer rescinds a policy in conformity with all of the requirements imposed by law the insurer generally may avoid liability on the policy to any third party injured by the insured. The Insurers Are Not Required to Seek Reimbursement from the Injured Workers Who Received Benefits to State a Claim for Rescission. Defendants contend the Insurers rescission claim fails because by declaring they do not intend to seek reimbursement from the injured workers or to terminate previously agreed-upon benefits the Insurers are not truly seeking rescission. Defendants argument that rescission is an all or nothing proposition either the Insurers must seek to recover from the injured workers what they paid to them or the policies remain available for all third party claimants is without merit. Indeed Civil Code section 1692 itself recognizes a contract may be rescinded in whole or in part. emphasis added If in an action or proceeding a party seeks relief based upon rescission the court may require the party to whom such relief is granted to make any compensation to the other which justice may require and may otherwise in its judgment adjust the equities between the parties. The Insurers on the other hand argue although prejudice to third parties may be an inevitable consequence of rescission the law clearly provides rescission is binding on innocent additional insureds third party beneficiaries and injured third parties. Unjust Enrichment The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched. It is not strictly speaking a theory of recovery but an effect the result of a failure to make restitution under circumstances where it is equitable to do so. It is synonymous with restitution. Ordinarily restitution is required only if the benefits were conferred by mistake fraud coercion or request. The Operative Complaint Adequately Alleged it Would Be Unjust for Defendants to Retain the Money Expended in Connection with Their Employees Workers Compensation Claims Although the operative complaint does not allege defendants colluded with Optima or were aware of its fraud participation in the fraudulent scheme is not required for a claim for unjust enrichment. Restitution may be warranted in cases in which the parties are innocent of wrongdoing for example in the case of a mistake of fact. This case has the added complexity that defendants may be innocent third parties but the Insurers are also innocent third parties. How equity is best served under these circumstances is a question that can only be resolved after a full development of all the facts. In sum the operative complaint adequately states a claim for unjust enrichment. DISPOSITION The orders sustaining the demurrer and granting judgment on the pleadings to the causes of action for quantum meruit were affirmed. The cause was remanded for further proceedings. ZALMA OPINION Insurance as policyholder lawyers remind me continuously is a business of the utmost good faith. They forget just as often that the covenant of good faith and fair dealing applies equally to both sides of the contract of insurance. Here the insured misrepresented the risk that it asked the insurers to take and the insurers rightfully rescinded their policies. If the policy never existed the 175 recipients of workers compensation benefits may not have had an insurer to pay but must take their benefits directly from the employer. If the insurers succeed the workers will not be without a remedy. I can only wonder why it took 175 claims to determine the insurers were deceived. Barry Zalma Barry Zalma Esq. CFE Volume 2 2015 verdict 25 Though perhaps hard to believe in the 1950s Santa Monica was known as the City of the Christmas Story. The City hosted choruses parades and all manner of holiday pageantry. Only one religious-themed tradition endured to present day Each December in the Citys famous Palisades Park a group of local church members erected 14 wooden dioramas illustrating the story of the birth of Christ. In 2003 the City banned all private unattended structures in its parks but provided an exception for permitted winter displays. Space in Palisades Park a designated landmark was allocated to applicants on a first-come first-serve basis. The Santa Monica Nativity Scenes Committee a group organized in 1983 to manage the life-size displays applied for and received permits each year. Permits were also issued for a Hanukah display and a winter solstice display. The program did not generate controversy until 2010 when an atheist sought and was granted a permit which he used to post a provocative quote Religions are all alike founded upon fables and mythologies. National media descended on the City and a debate on the propriety of religious speech on public property raged. In 2011 demand for permits far outnumbered the spaces. Atheists were granted permits for 11 of the 14 spaces in the City-run lottery including one for tribute to the Flying Spaghetti Monster of the Pastafarian religion. The Nativity Scenes Committee received two spaces. Anticipated Ninth Circuit Upholds Ban on Unattended Private Structures in City Parks by Karen S. Duryea participants vowed to flood the lottery with even more applications in the coming holiday season. The large number of applicants and the increased interest in the winter displays necessitated a substantial increase in City staff and staff time. As the administrative strain increased so too did the impact on the historic Park and on the public. In June 2012 the City Attorney presented the Santa Monica City Council with two options continue with the lottery system or repeal the exception for winter displays. On grounds that a total ban would enhance general public shared-use of the park and its iconic ocean views while continuation of the lottery would be time-consuming costly and preserve private monopolization of a precious public resource the Council opted for repeal marking the end of the decades-long tradition. Santa Monica Municipal Code section 4.55.060 as amended Ordinance No. 2401 Feeling their message had been targeted the Nativity Scenes Committee sued alleging violation of the Free Speech and Establishment Clauses of the First Amendment. In its Rule 12b6 motion to dismiss the City argued the ban on unattended structures was content-neutral constituted a valid time place and manner regulation and was enacted for secular purposes. The District Court granted the Citys motion to dismiss in Santa Monica Nativity Scenes Committee v. City of Santa Monica 2012 WL5870487 and on April 30 2015 the Ninth Circuit Court of Appeal affirmed that dismissal in Santa Monica Nativity Scenes Committee v. City of Santa Monica 784 F. 3d 1286 2015. The opinion notes the well-settled precedent for municipalities to impose content-neutral bans on all private unattended displays in public forums. Nativity 1292 citing Capitol Square Review Advisory Bd. v. Pinette 515 U.S. 753 761 1995 and Am. Jewish Cong. v. City of Beverly Hills 90 F.3d 379 384 1996. Since all agreed Palisades Park was a traditional public forum the analysis turned on whether the ordinance was content-based requiring strict scrutiny or content-neutral allowing time place and manner restrictions that are narrowly tailored to a significant government interest and leave open ample channels of communication. Nativity 1292. The Nativity Scenes Committee conceded the ordinance was facially content-neutral but argued it should be considered content- based pursuant to the hecklers veto doctrine. Nativity 1292. A hecklers veto is government regulation of speech on grounds that the speech will cause its hearers anger or discomfort. Regulation of speech is content- based when listeners react to speech based on its content and the government then ratifies that reaction by restricting the speech ... Id. 1292-1293 citations omitted. continued on page 26 26 verdict Volume 2 2015 Nativity continued from page 25 The Court resoundingly rejected the Committees position that Ordinance 2401 appeared to be a hecklers veto simply because it restricted speech following the controversy stirred up by the atheists. Nativity 1294. It concluded this case is far afield from the heartland of the hecklers veto doctrine especially because the City banned all unattended displays not just religious ones without discrimination between particular displays based on their content. Nativity 1292. Furthermore the right to impose a content-neutral ban did not evaporate simply because a controversy preceded it. Id. 1294-1295. The Court gave credence to the Citys proffered significant government interests of preserving aesthetic qualities of Palisades Park and conserving administrative resources. Nativity 1296-1297. Because the ordinance only affected unattended displays it did not burden substantially more speech than was necessary to further these legitimate interests. Nativity 1297-1298. Nor did the ban foreclose the Committee from conveying its religious message to the intended audience through one-day attended displays leafleting preaching holding signs and caroling even if such modes proved costlier. Id. 1298-1299. The Court further concluded the ban did not violate the Establishment Clause. The Citys secular purposes of protecting the park aesthetics and conserving staff resources were adequate rationales for adoption of the ban and it was ridiculous to think the ordinances primary effect was to disapprove of religion given the Citys decades-long history of accommodation of the Christian group. Karen S. Duryea Karen Duryea is a Deputy City Attorney at the City of Santa Monica. Volume 2 2015 verdict 27 Late last year a new committee was formed by the ASCDC the Public Entity Committee. Why Maybe because there are 58 counties 407 water districts 482 cities and 977 school districts in California just to name a few types of public entities all of whom get sued and need attorneys such as members of ASCDC to represent them. That is a large client base. There is specialized law as to each type of public entity and thus lawsuits with subject matter peculiar to the type of public entity eminent domain zoning civil rights violations ADA claims FHA claims etc. Most of these claims carry potential for award of attorneys fees against the defendant. In addition of course these entities get sued for the typical slip and falls employment problems premises liability auto accidents and so on. So I thought I would like to introduce you to your Committee which currently consists of three members and is open to welcoming more. At this point only Los Angeles and Orange Counties are represented on the Committee and we are anxious to expand the geographical breadth of the Committee make-up. Our first and primary goal is to be a resource to all members of ASCDC whenever issues arise which are peculiar to or common in this area of practice. Since governmental entities seem to be more vulnerable to claims for attorneys fees than other defendants this area is a sub specialty of the Committee. We welcome your questions and comments regarding anything within the general subject area covered by the Committee. In addition the Committee will be publishing a short article in each issue of Verdict concerning an interesting case or current issue within our Committees purview. If you have an issue or case you would like addressed in one of these brief articles let us know. by Robert L. Kaufman Committee Chair Finally we will be developing seminars on various topics such as the one on attorney fee disputes at the last ASCDC annual seminar in which the Committee participated along with Linda Miller Savitt and Steve Fleischman. These seminars will be presented not only to the ASCDC membership but also to outside groups in the hope of increasing the visibility of the organization and thus its growing its membership. So keep those cards and letters coming as Dean Martin used to say am I showing my age now and we will do our best to respond. You can send questions comments and inquiries to me through the ASCDC administrative offices and they will forward them to me. Robert L. Kaufman Mr. Kaufman is a senior trial counsel at Woodruff Spradlin Smart. He is a member of ABOTA FDCC NALFA and has been named a Top Attorney in Los Angeles and Orange Counties multiple times. For the last 40 years he has specialized in insurance defense and representation of public entities. He also is a certified expert in attorney fee disputes and awards. In Defense of the Public A Message from the Public Entity Sublaw Committee 28 verdict Volume 2 2015 Summer Reading Book Review Run Brother Run by David Berg by N. Denise Taylor Ihad the opportunity of attending a meeting recently in which the author of this gritty mesmerizing memoir was a speaker. David Berg is an acclaimed trial attorney who is a member of the Texas and New York bars and is best known as a criminal defense attorney as well as a high profile civil plaintiff lawyer. Spoiler alert this book is about the murder of Mr. Bergs brother Alan. However it is much more Berg writes about his chaotic upbringing and a family tragedy of which the murder was only a part it connects the criminal underworld the legal world and Hollywood. The presentation that I heard by Mr. Berg was profane irreverent funny and engrossing during which he read brief excerpts from the book. I had the opportunity to meet Mr. Berg and got a signed copy of his book. I started reading it and couldnt put it down. Run Brother Run is not Bergs first book The Trial Lawyer What It Takes to Win 2003 but it is his most personal one and tells the story of a life more dramatic than most of the cases he has handled in his career. It contains a history that was unknown to continued on page 29 continued on page 29 continued on page 29 Book Review The Onion Field by Joseph Wambaugh by Wendy L. Wilcox The Onion Field is a 1973 nonfiction book written by Joseph Wambaugh. Wambaugh was a sergeant for the Los Angeles Police Department LAPD. He is a descriptive writer who helps the reader understand not only the backgrounds of each of the four protagonists but how each viewed life in general. This type of writing is quite refreshing and rather different than the typical modern crime books published today. The book moves quickly and tells a gripping story about a tragedy that occurred one night where two plainclothes officers and two career criminals met in Los Angeles during a routine traffic stop which ultimately led to kidnapping an execution of one of the officers and a legal saga that lasted for years. On the night of March 9 1963 two LAPD officers and former Marines Ian Campbell and Karl Hettinger pulled over career petty criminals Gregory Powell and Jimmy Smith who were looking for a liquor store to rob. All four men were about the same age ranging from 28 to 32 years old. However Movie Review Class Action 1991 by Ninos Saroukhanioff Okay so last week while very bored I watched or rewatched Class Action. This is a movie from 1991 starring one of my favorite actors Gene Hackman. The story is about a civil lawsuit concerning injuries caused by a defective automobile. What makes the story so great well pretty good is that the plaintiffs attorney Jedidiah Tucker Ward played by Mr. Hackman discovers that the automobile manufacturers attorney Maggie Ward played by the curly haired Mary Elizabeth Mastrantonio is his estranged daughter. Yes I said it. The plaintiffs attorney is the father of the defense attorney Its nuts Thats like ______fill in the name of your favorite plaintiffs lawyer going up against his daughter ______fill in the name of the daughter of your favorite plaintiffs lawyer. Mr. Ward like most of our brethren on the plaintiffs side of the bar is a liberal civil rights lawyer who has based his career on helping those unfortunate people injured by rich and powerful businesses. Of course like most if not all plaintiffs lawyers he has vigorously pursued principle at the expense Volume 2 2015 verdict 29 his professional colleagues and even many of his family members until he wrote this book. This is a story about David Bergs striving Jewish family broken apart when their parents divorced and David and his older brother were separated with David staying with his mother and Alan going with his father. They reconnected when Alan moved back with him mom for a short time and became Davids savior and protector. David loved and admired his brother more than anyone in the world and they were very close despite the very different paths they took in life. While David attended law school and became a respected young member of the Texas bar his brother went into business with their father as a carpet salesman. Both Alan Berg and their father had questionable business practices and Alan additionally had a gambling problem that may have contributed to his downfall. Alan a loving husband and father disappeared in Houston in 1968 after being lured to a bar by a mysterious woman and was thereafter kidnapped and murdered. The chief suspect was Charles Harrelson a notorious hit man who also happened to be the father of Woody Harrelson the actor. It was suspected that Harrelson was hired by a business rival of Bergs father. After describing the rich background of the Berg family and Davids upbringing Berg brings to life the rough-and-tumble boomtown that was 1960s-era Houston and conveys with unflinching force the emotional damage his brothers death did to his family. Only a portion of the book deals with the actual trial which ended in Harrelsons acquittal. Berg describes the countless ways in which the prosecutor mishandled the case out-foxed by the defense at every turn. There was an eyewitness to the murder Mr. Harrelsons girlfriend who testified for the prosecution at the trial to no avail. The type of good-ol- boy-style Southern injustice prevalent in that era is highlighted by the countless unethical practices engaged in by famed lawyer Percy Foreman who at the end brought in a group of men of good repute to provide alibies for Run Brother Run continued from page 28 their lives were quite different as Wambaugh describes in great detail in the book. After Campbell and Hettinger pull Powell and Smith over Powell panics and kidnaps the officers while Smith tags along as usual this was their relationship as Wambaugh describes in the book. They drive out to the onion fields in Bakersfield where Campbell is shot and Hettinger escapes. Powell and Smith go their separate ways until they are soon detained and arrested and eventually convicted of murder and sentenced to death. Ultimately Powell and Smith received life sentences as their death sentences were vacated when the California Supreme Court ruled the death penalty was cruel and unusual punishment. Although Hettinger escaped he was plagued by survivors guilt and had difficulty moving on from the death of his partner. He was purportedly caught for shoplifting and forced to leave the department in 1966. However years later he put his life back together and served as county supervisor. He died in 1994 at age 59. Smith was released on parole in 1982 only to return back to jail several times where he eventually died of an apparent heart attack in April 2007 at age 76. Powell was denied parole multiple times and died in August 2012 at age 79. On August 14 2012 CNN and LA Times reported about Powells death and how he was the last of the four men to die. The LA Times quotes Wambaugh as saying Now there is nobody left alive from that tragic nighttime encounter that ended in an onion field where Ian Campbell died and from which Karl Hettinger never really escaped. One of the main players in the Onion Field Trial and one of the last surviving if not the last surviving persons involved is Marshall Schulman a prosecutor who prosecuted Powell and Smith and provides his insight in this book review. He is currently a criminal defense attorney in San Francisco. Schulman was interviewed by Wambaugh however Schulman thought Wambaugh continued on page 30 continued on page 30 continued on page 30 The Onion Field continued from page 28 of his own profit. But Mr. Ward has a bad habit of not paying his clients after their cases have been settled. Turn now to the personal drama and tension of the relationship between Mr. Ward and his daughter Maggie. Ooh they havent had a relationship since Maggie learned that her dad was cheating on her mother. To avoid any resemblance to her dad Maggie has taken a very different approach to her legal career by working for a high-powered corporate law firm. Back to the case. Mr. Ward is hired to help field a lawsuit against a major auto manufacturer whose station wagons have a dangerous propensity to explode on impact while making a left turn. Sound familiar Even though the evidence indicates he has an all but airtight case against the manufacturer the tide turns when Mr. Ward learns that his daughter Maggie is representing the manufacturer that he is suing. We come to learn that the manufacturer uses a bean-counting approach to risk management whereby it looks to what it will cost to pay off people who are killed or injured versus what it will cost to recall and or rebuild the car without the defect. You know what they decide dont you Yup. The manufacturer decides to keep the car as-is because of short term profitability. The case goes to trial where Mr. Ward and Maggie go at it. They skip past the part about how these personal injury claims were certified for class treatment. While getting ready to take on the plaintiffs key witness a former engineer for the manufacturer Maggie inspects the files visits the witness and learns an important fact about the design of an electronic part. Maggie finds the important stored data. What will she do with this key evidence It should be turned over as an item of discovery. So Maggie does what all defense lawyers do with bad evidence she buries it in a blizzard of papers. Maggie then begins her cross-examination of the former employee Mr. Povel. Maggie is known for her ability to discredit witnesses. Class Action continued from page 28 30 verdict Volume 2 2015 Mr. Harrelson providing reasonable doubt. Mr. Berg writes If I were on that jury I would have had to vote for acquittal too. Charles Harrelson was ultimately convicted of the 1968 murder of grain dealer Sam Degelia Jr. and spent five years in prison. After serving his time for that murder he killed again and was sentenced to two consecutive life terms for the assassination of United States District Judge John H. Wood Jr. Harrelson died in prison in 2007. It was in 2008 after decades of being unable to talk about the killing that David Berg began writing this book. With the help younger sister Linda he pored over old police reports and legal files and tracked down and interviewed innumerable people involved in the case. This research forms the basis for the narrative of the legal case. Run Brother Run is much more than the story of a murder and it grips the reader much more than one would expect from an author who is also a trial lawyer. It is a raw and painful memoir that taps into the darkest of human behavior and is a fascinating portrait of a Jewish-American family as well as being a true-crime courtroom murder drama. N. Denise Taylor N. Denise Taylor Taylor Blessey LLP did not contemplate him being in the book because Wambaugh was focused on other characters and how Hettinger was treated by the department. In fact Schulman was surprised he was mentioned in the book. Schulman thinks Wambaugh may have favored Smith in his description of him by pointing out Smiths tattoo on his hand spelling LOVE without pointing out the other hand spelled out HATE. Schulman also thinks Wambaughs portrayal of Smith as a follower is opposite to how Schulman saw the evidence. For example Schulman sees the evidence as showing Smith as the shooter who killed Campbell not Powell based on ballistics showing it was Hettingers weapon that was connected to the five shots into Campbells chest area and Hettingers weapon was found on Smith when he was arrested. This is quite compelling considering the paths of Smith and Powell following their convictions. On March 9 2013 Daily News reported on the Onion Field events pointing out it has been 50 years since that tragic night and described an exhibit dedicated to the officers that immortalizes the officers memory and sacrifice which is located at the Los Angeles Police Museum in Highland Park. This book inspired a movie in 1979 also called The Onion Field. It has been said that this movie put James Woods on the proverbial movie map. The book purportedly also inspired TNTs Southland Season 5 Episode 9 Chaos airdate April 10 2013. Wendy Wilcox Wendy Wilcox Skane Wilcox LLP Mr. Povel testifies about the malfunction. Maggies cross-examination tests Mr. Povels memory. But Maggie asks about a missing report. Hmm. A missing report. Well the judge calls a recess to discuss a witness. A defense lawyer Maggies boss and lover takes the stand. He knows nothing about a report. They then call an analyst who testifies about the 1985 model. There is another meeting with the judge who offers advice. Without giving away the ending I will tell you that the case settles. There is a victory celebration. If youre stuck at home on a hot Sunday afternoon with nothing else to do then I would highly recommend watching this movie. Ninos Saroukhanio Ninos Saroukhanioff Maranga Morgenstern Run Brother Run continued from page 29 The Onion Field continued from page 29 Class Action continued from page 29 Volume 2 2015 verdict 31 defense successes may august Describe your Defense Verdict For Publication in Verdict Magazine Let us help you advertise your trial successes Have you won a defense verdict in a jury trial Have you obtained a defense judgment in a bench trial or following a dispositive ruling during or after trial such as by nonsuit directed verdict or JNOV If so complete the information in the form on the ASCDC website www. ascdc.orgpublications_sub.asp or submit your favorable trial result to Westlaw info.legalsolutions. thomsonreuters.comtrialsdigest form.asp and send us a copy in a Word or PDF le to ascdc camgmt.com and we will publish it in Verdict Magazine. Sean D. Beatty Beatty Myers LLP Cazares v. Hyundai Motor America McKinzie v. Toyota Motor Sales U.S.A. Inc. Janette Bodenstein Jonathan Cole Nemecek Cole Broadway Victoria LLC v. Norminton et al. David A. Clinton Clinton Clinton Taylor v. Westeld Louise M. Douville for Dr. Basmajian Brobeck West Borges Rosa Douville Patrick Stockalper for Dr. Vangsness Reback McAndrews Kjar Warford Stockalper Moore LLP Adams v. Vangsness Louise M. Douville Brobeck West Borges Rosa Douville Ward v. Lee Anthony Kohrs Michael Schonbuch Daniels Fine Israel Schonbuch Lebovits Buchanan v. Twin Rock Partners Wintermute v. Wendel Kevin J. McNaughton Katrina J. Valencia Schaffer Lax McNaughton Chen APC Hubbard v. Allied Packing Supply Inc. et al. Terry A. Rowland Demler Armstrong Rowland LLP Celis v. 1995 Grett Trust Thomas Scully Walsworth Franklin Bevins McCall Macpherson v. Pace Timothy M. Smith McKinley Smith APC Forrester v. Trimont Land Co. Sierra at Tahoe et al McGovern v. Sugar Bowl Corporation Joshua C. Traver Cole Pedroza LLP Wascher v. Kaiser Foundation Health Plan Inc. Michael A. Zuk Herzfeld Rubin LLP Harter v. Katzen 32 verdict Volume 2 2015 amicus committee report continued on page 33 ASCDCs Amicus Committee continues to work energetically on behalf of its membership. ASCDCs Amicus Committee has submitted amicus curiae briefs in several recent cases in the California Supreme Court and California Court of Appeal and has helped secure some major victories for the defense bar. Pleasevisitwww.ascdc.orgamicus.asp RECENT AMICUS VICTORIES The Amicus Committee has recently participated as amicus curiae in the following case County of Los Angeles Board of Supervisors v. Superior Court ACLU 235 Cal.App.4th 1154 review granted July 8 2015. The ACLU has filed various actions against Los Angeles County involving alleged use of excessive force in County jails. The ACLU then filed this action seeking to obtain the defense attorneys legal bills from the County as public records. Addressing an issue of first impression the Court of Appeal held that defense counsels bills are privileged and therefore not subject to being produced to the ACLU. Lisa Perrochet Steven Fleischman and Jean Doherty from Horvitz Levy submitted ASCDCs amicus letter. Note that the California Supreme Court granted review on July 8 2015 and at this time ASCDC intends to submit an amicus brief on the merits before the Supreme Court. PENDING CASES AT THE CALIFORNIA SUPREME COURT AND COURT OF APPEAL ASCDCs Amicus Committee has also submitted amicus curiae briefs in the following pending cases 15657 include a health care providers failure to refer an elder patient to a specialist if the care took place on an outpatient basis or must an action for neglect under the Act allege that the defendant health care provider had a custodial relationship with the elder patient Harry Chamberlain Buchalter Nemer submitted an amicus brief on behalf of ASCDC. Hudson v. County of Fresno docket No. F067460 pending in the Fifth District Court of Appeal Fresno. The defendant claims that the plaintiff improperly used Reptile arguments during closing argument. Robert Wright Lisa Perrochet and Steven Fleischman from Horvitz Levy submitted an amicus brief on the merits supporting the defendants position. Lee v. Haney docket No. S220775 pending in the Supreme Court. The Supreme Court has granted review to determine if the one-year statute of limitations for legal Sanchez v. Valencia docket no. S199119 pending in the California Supreme Court. This case includes the following issue Does the Federal Arbitration Act 9 U.S.C. 2 as interpreted in ATT Mobility LLC v. Concepcion 2011 563 U. S. __ 131 S.Ct. 1740 preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable J. Alan Warfield Polsinelli LLP submitted an amicus brief on behalf of ASCDC. Winn v. Pioneer Medical Group Inc. docket no. S211793 pending in the California Supreme Court. Plaintiffs claims are against defendant physicians for elder abuse arising out of the care provided to the plaintiffs deceased mother who died at the age of 82. The Court of Appeal had held that elder abuse claims are not limited to custodial situations. The Supreme Court has framed the issue presented as follows Does neglect within the meaning of the Elder Abuse and Dependent Adult Civil Protection Act Welf. Inst. Code Volume 2 2015 verdict 33 Amicus Committee Report continued from page 32 malpractice actions Code Civ. Proc. 340.6 applies to a claim brought by a client against a lawyer for return of money allegedly held in the lawyers trust account. Harry Chamberlain of Buchalter Nemer has submitted a brief on the merits supporting the defendants position and presented oral argument to the Supreme Court on May 26 2015. An opinion is expected by the end of August. HOW THE AMICUS COMMITTEE CAN HELP YOUR APPEAL OR WRIT PETITION AND HOW TO CONTACT US Having the support of the Amicus Committee is one of the benefits of membership in ASCDC. The Amicus Committee can assist your firm and your client in several ways 1. Amicus curiae briefs on the merits in cases pending in appellate courts. 2. Letters in support of petitions for review or requests for depublication to the California Supreme Court. 3. Letters requesting publication of favorable unpublished California Court of Appeal decisions. In evaluating requests for amicus support the Amicus Committee considers various issues including whether the issue at hand is of interest to ASCDCs membership as a whole and would advance the goals of ASCDC. If you have a pending appellate matter in which you believe ASCDC should participate as amicus curiae feel free to contact the Amicus Committee StevenS.FleischmanChairoftheCommittee Horvitz Levy 818-995-0800 Robert Olson Greines Martin Stein Richland LLP 310-859-7811 J. Alan Wareld Polsinelli LLP 310-203-5341 Joshua Traver Cole Pedroza 626-431-2787 Jeremy Rosen Horvitz Levy 818-995-0800 Harry Chamberlain Buchalter Nemer 213-891-5115 Michael Colton The Colton Law Firm 805-455-4546 David Pruett Carroll Kelly Trotter Franzen McKenna 562-432-5855 Ben Shatz Manatt Phelps Phillips 310-312-4000 Sheila Wirkus Pendergast Hennelly Grossfeld 310-305-2100 Susan Brennecke Thompson Colegate 951-682-5550 Ted Xanders Greines Martin Stein Richland LLP 310-859-7811 Richard Nakamura Morris Polich Purdy 213-891-9100 David Schultz Polsinelli LLP 310-203-5325 Renee Diaz Hugo Parker LLP 415-808-0300 Laura Reathaford Venable LLP 310-229-0443 34 verdict Volume 2 2015 www.ascdc.org Now showing on a small screen near you .... TheAssociationofSouthernCaliforniaDefenseCounselhasawealthofvaluable information available to you at www.ascdc.org including an Attorney Locator anExpertWitnessdatabaseandanAmicussectionaCalendarofEventsonline meeting registration archives of important and timely articles and legislative updatesincludingbackissuesofVerdictmagazineandaMembers-Onlysection. Log on today. Volume 2 2015 verdict 35 NAME________________________________________________BAR NUMBER______________________________________________ FIRMLAW SCHOOL_____________________________________________________________________________________________________ ADDRESS______________________________________________________________________________________________________________ CITYSTATEZIP_________________________________________________________________________________________________________ TELEPHONE___________________________________________E-MAIL_____________________________________________________ MEMBERSHIP in the Association of Southern California Defense Counsel is open by application and approval of the Board of Directors. Attorneys must be members in good standing with the State Bar of California and a substantial portion of your practice must be devoted to the defense of civil litigation. Individuals applying for law student membership must be registered as a full-time or evening student pursuing a J.D. degree. Are you now devoting a substantial portion of your professional time to the practice of the defense of civil and business matters including the prosecution of eminent domain proceedings Yes No Student If a full-time employee of an Insurance Company Corporation or Public Entity please provide the name of your employer and your title or position__________________________________________________________________________________________________________ SPONSORING MEMBER_____________________________________________ _________________________________________________ Name Firm PRACTICESPECIALTY AREA SECTIONS In order to provide you with targeted information please check all that apply Appellate Business Litigation Construction Law Employment Law GeneralPremises Liability Insurance Law Litigation Intellectual Property Managing Partner Medical Malpractice Personal Liability Products Liability Professional Liability Public Entity Transportation Toxic Torts Young Lawyer MEMBERSHIP FEES Regular 295.00 Public Entity Corporation or Employee of an Insurance Company 195.00 Law Student 25.00 Young Lawyer in practice 5 years or less 185.00 New members receive a complimentary half-day education seminar complimentary attendance at the Annual Judicial and New Member Reception in December during their first year of membership. PAYMENT Check Enclosed Please Charge My Credit Card _______________________________ Exp Date___________ Security Code_________ If paying by credit card please fax to 916-924-7323. If elected to membership I agree to abide by the Bylaws of this Association. ________________________________________________________________________________________ _______________________________ Signature of Applicant Date Contributions or gifts including membership dues to ASCDC are not tax deductible as charitable contributions. Pursuant to the Federal Reconciliation Act of 1993 association members may not deduct as ordinary and necessary business expenses that portion of association dues dedicated to direct lobbying activities. Based upon the calculation required by law 15 of the dues payment only should be treated as nondeductible by ASCDC members. Check with your tax advisor for tax creditdeduction information. Please return this form with your payment to ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE COUNSEL 2520 Venture Oaks Way Suite 150 Sacramento CA 95833 Toll Free 800.564.6791 Phone 916.239.4082 Fax 916.924.7323 www.ascdc.org ascdccamgmt.com Updated7214 Application for Membership 36 verdict Volume 2 2015 Eric Schwettmann Patrick Stockalper Jeffrey A. Walker Robert A. Olson Immediate Past President the association of southern california defense counsel 2520 venture oaks way suite 150 sacramento ca 95833 800.564.6791 www.ascdc.org executive committee Michael Schonbuch President Glenn T. Barger President-Elect Clark R. Hudson Vice President Christopher E. Faenza Secretary-Treasurer board of directors Michael A. Colton Peter S. Doody Thomas P. Feher Lisa J. McMains Gary T. Montgomery Lisa Perrochet Lawrence R. RamseyStephen C. Pasarow Ninos P. Saroukhanioff Julianne DeMarco Edward R. Leonard Patrick J. Kearns Diana P. Lytel Jean Daly Anthony Kohrs Volume 2 2015 verdict 3 verdictverdictverdictthe association of southern california defense counsel 2520 Venture Oaks Way Suite 150 sacramento ca 95833 PRE-SORT FIRST CLASS U.S. POSTAGE PAID PERMIT 1660 Sacramento CA September 18-19 2015 Santa Barbara Conference DoubleTree Santa Barbara December 3 2015 Construction Defect Seminar Orange County December 15 2015 Judicial and New Member Reception Jonathan Club Los Angeles February 25-26 2016 ASCDC 55th Annual Seminar JW Marriott Downtown Los Angeles