Contra Costa Lawyer - September 2018 The Crossover Issue

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Contra Costa

Lawyer Volume 31, Number 5 | September 2018

Criminal Law Employment Law

Mediation Arbitration Workers Comp Tax Tips

The Crossover Issue

Diplomas don’t grow on trees either With college tuition and fee hikes regularly outpacing inflation, it’s never too early to start saving for higher education costs. Together we can explore a variety of savings vehicles, including 529 plans, Coverdell Education Savings Accounts, and UGMA/UTMA accounts. Find a strategy that’s right for your family. Call when you’re ready to talk. The Novak Wealth Management Group of Wells Fargo Advisors

Investment and Insurance Products: u NOT FDIC Insured u NO Bank Guarantee u MAY Lose Value Wells Fargo Advisors is a trade name used by Wells Fargo Clearing Services, LLC, Member SIPC, a registered broker-dealer and non-bank affiliate of Wells Fargo & Company. © 2013, 2016-2017 Wells Fargo Clearing Services, LLC. All rights reserved.

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Perry A. Novak Senior Vice President - Investment Officer 2033 N. Main Street, Suite 600 Walnut Creek, CA 94596 Direct: (925) 746-7278 CA Insurance # 0A79397


Contra Costa  2018 BOARD of DIRECTORS James Wu President Wendy McGuire Coats President-Elect Oliver Greenwood Secretary Laura Ramsey Treasurer Philip Andersen Past President Gina Boer Steven Derby Mika Domingo David Erb Renée Welze Livingston David Marchiano

Ericka McKenna Nicole Mills Craig Nevin Dorian Peters Summer Selleck Qiana Washington

CCCBA   EXECUTIVE   DIRECTOR Theresa Hurley | 925.370.2548 | CCCBA main office 925.686.6900 |

Barbara Arsedo Carole Lucido

LRIS & Moderate Means Director Communications Director

Jennifer Comages Anne K. Wolf

Membership Director Education & Events Director

Emily Day

Fee Arbitration Program Director & Systems Administrator

Contra Costa Lawyer CO-EDITORS EDITORIAL BOARD Suzanne Boucher David Arietta 925.933.1500 925.472.8000

Inga Miller Ann Battin

925.402.2192 510.234-2808

BOARD LIAISON Marcus Brown Nicole Mills 925.482.8950 925.351.3171 Beth Mora COURT LIAISON 925.820.8949 Kate Bieker Perry Novak 925.957.5600 925.746.7278

DESIGN/ADVERTISING Samantha Sepehr Carole Lucido 925.287.3540 925.370.2542 Christina Weed PRINTING 925.953.2920 Modern Litho 800.456.5867

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year – six times online-only – by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@ The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

Lawyer Volume 31, Number 5 | September 2018

The official publication of the

B   A   R        A   S   S   O   C   I   A   T   I   O   N


Fact Pattern: When Work, Family and Business Collide, by Nicole Mills, Benisa Berry and Beth Mora . . . . . . . . . . . . . . . . . . . 5

When Love Goes Wrong: Criminal Conseqenses to a Messy Divorce, by Qiana Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Taking the Employee’s Side An Employment Attorney’s Perspective, by Marjorie Wallace. . . . . . 10 Workers’ Compensation Perspective, by Elaine Deane. . . . . . . . . . . 11 Risky Business: Can Insurance Mitigate All Your Risk, by Sean Brennan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Resolving the Workplace Conflict: Can Veronica Return to Family Co.?, by Margaret Grover. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 The Arbitration Conundrum: Practicalities and Alternatives to Consider Early, by Mark LeHocky . . . . . . . . . . . . . . . . . . . . . . . . 24

MORE Tax Tips from the Tax Lawyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

COLUMNS INSIDE by Nicole Mills and Benisa Berry . . . . . . . . . . . . . . . . . . . . . 4 Last Month: The Retro Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34


PHOTOS: Women’s Section Annual Luncheon


PHOTOS: CCCBA Goes to the Ballpark


WELCOME New Members

30 SUSTAINING FIRMS 33 Classifieds 33


35-38 Calendar

EVENTS 27 Family Law Training – The Basics 28

Diversity Networking Event with Minority Bar Associations


New Rules of Professional Conduct: What You NEED to Know

31 CCCBA Presents State Bar-Required Live Scan Fingerprinting 32

Bar fund benefit


MCLE SpectaculaR



INSIDE by Nicole Mills and Benisa Berry,

Guest Editors This month we decided to do something a little bit different. Instead of choosing a theme and asking people to write about it, we channeled our inner law-school professor and created a fact pattern and then we asked people in different areas of expertise to look at and give us their insights. Our fact pattern centers on Veronica and Albert, a divorced couple who used to work together and who now still find themselves working in the same space, albeit for different employers. Although they are divorced, Albert has been harassing Veronica (and has attacked her), in her workplace at Family Co. We asked a wide variety of experts to give us their thoughts. Some of our authors gave advice. Qiana Washington, a criminal attorney with Washington & Associates, offers her advice to Albert (who should really give her a call!), while Marjorie Wallace, an employment attorney, offers her advice to Veronica (who has options here, but needs to protect her rights). Maggie Grover, a mediator, offers her advice 4

september 2018

to the mediator that Veronica and Family Co. use to try to resolve their dispute and perhaps create a safe space for Veronica to return to.

tially involves the expertise of many different practice areas. Always keep your eyes (and mind) open for those possibilities.

Some of our authors offer advice to the reader. Sean Brennan, VP with Pacific Diversified Insurance Services , explains the different types of insurance that Family Co. probably wants to have in place to help them should Veronica file a lawsuit or a worker’s compensation claim. Speaking of which, Elaine Dean explains the application of worker’s compensation to Veronica’s situation. Last, but certainly not least, Mark LeHocky, a mediator and arbitrator, examines the potential arbitration issues raised by potential claims by Veronica against Family Co.

Nicole Mills is a mediator and owner of Empower Mediation ( She handles both civil mediation and divorce mediation and is based in Walnut Creek. She can be reached at

We hope you enjoy this issue. There were so many other perspectives we could have included- family law, domestic violence issues, employerside advice, etc., but at some point we ran out of space! What we really hoped to achieve was to illustrate that every client’s situation poten-

As a mediator, Benisa Berry directs Dispute Resolution Programs Act (DRPA) funded court mediation and community conflict resolution programs for Contra Costa County through the Center for Human Development. She also is the Diversity and Inclusion Officer and the Deputy Title IX Administrator for John F. Kennedy University. At the CCCBA, Benisa is on the board of directors of the Alternative Dispute Resolution section and serves on the CCCBA Diversity Committee.


When Work, Family and Business Collide

Fact Pattern:

by Nicole Mills, Benisa Berry and Beth Mora

Note: For this issue of the Contra Costa Lawyer, instead of choosing a theme and asking people to write about it, the guest editors created this fact pattern and asked attorneys in different practice areas to provide their insights. Family Co. began in 1974 in the San Ramon garage of Family where classic cars and motorcycles were lovingly refurbished. Over the years, Family Co. has grown into one of the largest classic car and motorcycle refurbishing companies in the great U.S.A., employing just Family to well over 150 people in their state of the art Concord, California warehouse facility. Veronica is the 38-year-old female employee of Family Co.’s who has worked at Family Co. since high school in shipping/receiving as well as reception. Albert is a 40-year-old male who began working for Family Co. two years before Veronica joined. They were married shortly after Veronica graduated from high school, though they have been divorced since January 1, 2016. After the divorce was final, Albert moved from Family Co. and began working full time with Family Co.’s long- time vendor Vendor Co. Though Albert worked for the vendor, Albert was assigned to service the relationship between Vendor Co. and Family Co. thus Albert is at Family Co. nearly every day for significant periods of time, often in the shipping and receiving office with Veronica. Family Co.’s manager, Blanch, is best friends with Veronica. Blanch has worked at Family Co. for nearly 20 years and is the daughter of the founder.

Albert was not happy when Veronica decided to separate, and although the proceedings are finalized, he continues to attempt to rekindle their relationship. While at Family Co., he is hanging out near her desk and constantly asking her out on dates. She has always said “no” and lately he has felt embarrassed by getting “shot down” by her in public. He began to corner her in the workplace to hug/kiss her, grab her buttocks or grab her by the waist and slam his pelvis into her backside telling her he cannot stop thinking about her and having sex with her/that she will then regret the separation, etc. She has told him repeatedly not to do that and she has even asked several co-workers never to leave her alone with him.


Albert also engages in a barrage of emails and text messages (to her work email and work cell from his work email and work cell), all conveying the same message. Veronica is alarmed at the escalation of his behavior, but believes that if she ignores him, maybe he will get the message and stop. In early 2018 Veronica began dating a new man. Although she thought maybe Albert would get the message and stop, in fact he became extremely upset and far more aggressive with his actions, including threatening communications and physical aggression in the Continued on page 6 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER


Fact Pattern

Continued from page 5 workplace. Veronica was becoming increasingly afraid of Albert. One night in February, when they were out for “ladies night”, Veronica told Blanch what was going on. Blanch was appropriately empathetic and offered moral support. She did not, however, recommend any action. On Wednesday, June 6, 2018 Albert followed Veronica to her car after work. This time, he became violent, pushing her to the car, choking her, touching her in a sexual manner, causing Veronica to fear that she was going to be raped. She screamed for help and a warehouse worker pulled Albert off Veronica. Albert was allowed to leave the premises. Veronica immediately sought urgent medical care but no police report was filed. She called two people: her mother, who urged her to get

some sort of protection; and Blanch, who met her at urgent care, held her hand while she cried, and gave tips to cover the bruises with make-up. Like a true friend, Blanch called and yelled at Albert telling him, “I know what you did! You stay the F away from Veronica!” However she did not report the matter to Family Co. or Vendor Co., nor did she suggest a police report or a TRO. Veronica took a few sick days thereafter, Thursday June 7th and Friday June 8th – too afraid to go to work with bruises, etc. On Thursday June 7th Veronica contacted her doctor for a follow-up urgent care appointment, wherein she was given contact information for a domestic violence clinic. When Blanch called to see how she was, Veronica told Blanch about the doctor’s referral and told her that her mother was worried about her safety as well, and she asked Blanch if she should

Celebrating the Life of Iris F. Mitgang

Even though it’s been 20 years since the accident that rendered her unable to return to her normal life, I’m sure there are many of you who remember Iris F. Mitgang. She was instrumental in the creation of the mediation program in CCC, was the Chair for the National Women’s Political Caucus and assisted in the redrafting of the Fair Employment Practices Act to name just a few of her accomplishments. She was a stellar family law attorney and a promoter and defender of women’s rights. She took a seat at the table and made positive changes. I had the privilege of working for Iris. She was funny and oh so smart. She treated her staff with respect, kindness and generosity. I’ll forever be grateful for the grace and dedication she shared with our country, her clients and us. Iris died on May 6, 2017. Her family held a private memorial service on Sunday, March 18, 2018. In her honor and to continue her legacy, the IFM Internship has been created at the National Women’s Law Center in Washington DC. To learn more or to donate, here’s the link: –Elizabeth Phelan 6

september 2018

do something about Albert. Blanch told Veronica not to worry, that she called and yelled at him, “I always got your back girl!” This did not make Veronica feel safe. After suffering from panic attacks at the thought of going back to work, being unable to sleep and having nightmares all weekend, Veronica called in sick again on Monday, June 11th. Veronica then called her doctor who ultimately placed her on Family Medical Leave Act (FMLA) leave for one month, ordered her to mental health treatment, prescribed medication and completed the state disability leave form. Veronica notified Blanch by text and phone call on June 11th. Blanch immediately called and started to lightly tease her friend, saying, “Come on girl! Get yourself to work, it will make you feel better!” But after hearing her cries, Blanch appeared to appreciate it was more serious and commented she would get the forms going and get back to her. Veronica has tried for several weeks to contact Blanch, who has not returned her calls and has instead responded via email with short responses. Veronica’s month of FMLA leave is almost over and she must decide what to do. Special thanks to Beth Mora of Mora Employment Law for her help writing this fact pattern and in bringing different aspects of the law into play. Beth Mora is a zealous and skilled advocate for those facing a range of employment law issues. Beth is committed to aggressively pursuing her clients’ best interests while treating each person she serves with integrity and compassion.

When Love Goes Wrong: Criminal Consequences to a Messy Divorce by Qiana Washington If police and prosecutors get involved, Veronica and Albert’s situation is what is called a “domestic violence” case. Criminal defense attorneys call it “DV” for short. There are several charges likely to be filed against Albert including: sexual battery (Penal Code section 243.4), stalking (Penal Code section 646.9(a)), criminal/terrorist threats (Penal Code section 422), corporal injury to spouse (Penal Code section 273.5), assault likely to cause great bodily injury (Penal Code section 245(a)(4)), and assault with intent to commit rape (Penal Code section 220). Since only the government may prosecute a criminal complaint, Veronica would have to make a police report and the local prosecutor, the Contra Costa County District Attorney’s Office, would have to act. A criminal defense firm could provide no assistance to Veronica on this fact pattern unless she is charged with violating a court order for not allowing Albert his visitation with the children. Violating a court order is contempt of court (Penal Code section 166(a) (4)). Since Albert is the one most likely to be prosecuted, a criminal defense firm would advise Albert if he were to seek legal assistance. First, Albert must cease and desist all communication with Veronica. Every threatening message or unwanted physical contact is a separate count. Additional counts lead to increased criminal penalties, i.e. longer jail or prison sentences. Second, a criminal defense attorney would go over the charges, or, in this case, the potential charges Albert is facing. The most chal-

lenging charges will relate to the text messages and emails. One can assume Veronica will provide copies to the police, should she decide to go that route. Since the past cannot be undone, the messages provide objective “proof” of Albert’s threats, these are the most difficult charges to overcome. There are two ways the prosecution could charge the threats. The first is via Penal Code section 422. A 422 charge can be filed as either a misdemeanor or a felony. As a result, we call this a “wobbler.” If it is charged as a misdemeanor, Albert is facing up to one year in county jail. If it is charged as a felony, it is a serious felony also known as a “strike” under Penal Code section 1192.7. Albert could face 16 months, two years, or three years in state prison, if convicted. The second way these allegations could be charged is as stalking. Like criminal threats, stalking is also a wobbler. He faces the identical amount of jail and prison time for stalking but it is not a strike. If Albert is convicted of stalking, the judge could impose registration as a sex offender under 646.9(d). This would require Albert to register with his local police department annually on his birthday and within 30 days of moving. There are also limitations to where he can live and he may have his name, address and photo published on the Megan’s Law website. Starting in January of 2021, however, there will be different tiers of offenders that are required to register for 10 years, 20 years or life. The defense could potentially defend against these charges by arguing the threats were not “credible” or specific enough, as Continued on page 8 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER


Criminal Consequences Continued from page 7

required by law. While some of the messages say Veronica is going to “regret the separation” and others are “violent and/or aggressive” it is not clear what this means. Further investigation is necessary to determine what can be done to help. With regard to the sexual battery charge, this too, could be a felony or misdemeanor. Penal Code section 243.4(a) is a wobbler if Albert touched an intimate part while “unlawfully” restraining Veronica for the purpose of sexual gratification, sexual arousal, or sexual abuse. The primary focus of this charge would be grabbing her “buttocks,” “slamming his pelvis into her backside,” and “touching her in a sexual manner.” Albert could face up to a year in county jail if the charge is a misdemeanor or, two, three or four years in state prison. This is not a strike though it would lead


September 2018

to registration as a sex offender as outlined above. It seems from the fact pattern that no one saw him do these things. If that is the case, it’s a “he-said-she-said” case. Given the fact she did not report it right away and interfered with Albert’s visitation rights under a court order, the defense could argue she is making these allegations in an attempt to get sole custody of the children. This is a viable defense as long as Albert does not confess. Since Veronica is Albert’s former spouse and since she received physical injuries in the assault, Albert could be charged with violating Penal Code section 273.5. Like the other charges discussed above, this too, is a wobbler. Albert could face up to a year in the county jail or two, three, or four years in state prison. Section 273.5 is not a strike. A “lessor” offense for the kissing and tripping, which did not result in injuries, would satisfy Penal Code section 243(e)(1), domestic battery.

Section 243(e)(1) is a misdemeanor that carries up to one year in the county jail. The fact pattern does not say anyone else witnessed these encounters so, this too, is a “he-said-she-said” allegation. The defense could make the same arguments about bias described above. Finally, the June 6, 2018 encounter is, perhaps, the most serious. The potential for a sexual battery charge was discussed above but there are additional charges such as Penal Code section 245(a)(4), assault likely to cause great bodily injury for choking her. This charge is also a wobbler so Albert could face up to one year in county jail or two, three, or four years in state prison. Section 245(a)(4) is not a strike under this fact pattern. Albert could also be charged with Penal Code section 220, assault with intent to commit rape. This is a straight felony and carries a potential sentence of two, four, or six years in state prison. It also carries registration as a sex

offender and it is a strike. Assault with intent to commit rape requires the specific intent to commit rape. While Veronica feared she would be raped, it is not clear this was Albert’s intention. With regard to the choking, it is not clear the warehouse worker saw it since she called for help afterward. It is also not clear whether he saw the sexual touching. If he just witnessed a physical confrontation, the defense could argue he did not see how it started and does not know whether Veronica attacked Albert first. The medical documentation lends credibility to Veronica’s claims so this is a potential pitfall. Albert is likely in quite a bit of trouble but with the right legal representation, he can preserve his liberty. Qiana Washington is Managing Partner at Washington & Associates and has practiced exclusively criminal defense for fourteen years. Qiana was a public defender for ten years prior to opening her own firm.

Happy 50th Birthday Theresa

The Board of Directors surprised CCCBA Executive Director Theresa Hurley with a cake and birthday wishes in July. Pictured in front row: Nicole Mills, Theresa Hurley, Mika Domingo, Wendy Coats and James Wu (Board President). Back row: Steve Derby, Dorian Peters, Anne Wolf (staff), Ericka McKenna, Oliver Greenwood, Summer Selleck, Barbara Arsedo (staff) and Qiana Washington. Thanks to CCCBA members who sent cards to Theresa this summer. You made her birthday extra special!

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Taking the Employee’s Side – An Employment Attorney’s Perspective By Marjorie Wallace

Veronica’s best friend Blanch said, “I have your back”, but it appears for years Blanch has neglected her managerial duties and her negligence is attributable to Family Co. Discovery should reveal Family Co.’s sexual harassment/domestic violence training and policies, but most likely Blanch failed to follow any which might have prevented or minimized Veronica’s (and co-workers’) suffering from Albert’s behavior. The doctor put Veronica on disability/serious health condition leave as a reasonable accommodation, but now that leave is ending without Family Co. communicating whether it had approved the leave and is protecting Veronica’s job and healthcare benefits. She should get this verified in writing. Because Veronica is not ready to return to work, she should talk to her doctor about extending her leave, so she has more time to recover and act to protect her employment rights and workplace safety. During her leave, she needs to keep Family Co. apprised and provide her doctor’s certification. While understandably difficult, Veronica should report Albert to the police and seek a restraining order against him. A domestic violence clinic should help with this. It may or may not be worth pursuing civil legal action against Albert for domestic violence/sexual harassment, etc., but there are options against Family Co. 10

September 2018

Family Co.’s Possible Liability Possible factual challenges with claims against Family Co. include the fact that: 1) Albert is Veronica’s ex-husband; 2) Albert is not a Family Co. employee; 3) Blanch is both Veronica’s boss and best friend; 4) Albert sent his objectionable emails and texts via his Vendor Co. (work) email and cell phone; 5) Albert’s harassment began about a year beyond the one year look-back for sexual harassment; 6) Albert’s June 6th attack was after work and possibly off-site Nevertheless, a solid legal basis for a hostile environment sexual harassment claim against Family Co. exists, and possibly another against Vendor Co. My advice would be obtaining a right to sue letter from the Department of Fair Employment and Housing for sexual harassment, failure to prevent sexual harassment, sex discrimination and retaliation against Family Co. and going after Vendor Co. for sexual harassment and Ralph Act Hate Violence. The next step would be demand letters to the employers, but most likely Veronica would need to file lawsuits against them, unless Family Continued on page 12

Workers’ Compensation Perspective By Elaine Dean

Injured workers are not entitled to the array of benefits of the civil court system, such as pain and suffering and punitive damages. Benefits are limited to medical care, temporary disability, permanent disability, money for retraining, and death benefits in the event of death. Veronica is entitled to both civil and workers’ compensation benefits. The threshold issue is whether Veronica’s injuries meet the compensability requirements of Labor Code Section 3600, which provides for liability for injury “arising out of” and in the “course of employment.” This is a two-pronged requirement, referred to as AOE/COE. If both prongs are met, the injury is compensable. In an assault case, an employer’s liability depends on the nature of the risk: industrial, personal, or neutral. An industrial risk is related to the employment, and would include an attack by a disgruntled ex-employee, SCIF v. WCAB (Hale) (1981) 46CCC259 (writ denied), shooting a clerk by a robber, Roberts v. Pup ‘N.’, Taco Driveup (1984) 160 Cal. App. 3d 78 or a bartender injured by an intoxicated customer, Gardner v. IAC (Ballinger) (1946) 11 CCC 54. A personal risk is an assault wholly unrelated to the employment, that just happened to occur on the employer’s premises, and is not compensable. Many cases finding no compensability involve a woman shot at work by a jealous husband. Contaure v. WCAB (1983) 48 CCC 795 (writ denied); Paredes v. WCAB 33 CCC 205.) The theory is that the assault could occur anywhere, rendering the injuries non-compensable.

If a personal motivation for assault is somehow connected with work it may be compensable. But there must be some employment connection or contribution. The California Supreme Court has found a causal connection for an employee’s death while working even though she was killed by her ex-husband. The victim’s job involved measuring customer’s tables to make table pads. The ex-husband telephoned the employer to have someone sent to measure his table. His ex-wife was sent, and he shot her dead. The Court held that the nature of the work was a factor in the husband’s plan. California Compensation & Fire Co v. WCAB (Schick) (1968) 33 CCC 38. The fact the conflict was personal did not change that conclusion. However, the Court of Appeal in Transactron Inc., v. WCAB (1977) 42 CCC 235,240, held an employer not liable for an assault when the workplace was merely a stage for the assault.

The Court said:

Where the nature of the employee’s duties places her in no particular dangerous or isolated position, or where the risk of harm is not limited to the place of employment and where the attack occurs on the premises not because the victim was performing duties of employment at the time of the assault, but because she was merely there, and where the nature of the employment was not part of an assailant’s plan to isolate or trap the victim, the injury does not arise out of the employment. Continued on page 14

Risky Business: Can Insurance Mitigate All Your Risk?

By Sean Brennan, Pacific Diversified Insu

rance Services

There is an old adage, “In order to find out what your policy cov ers, you must first find out what it doesn’t cover.” Insurance carriers have a duty to defend their clients in cases that are brought against them for any particular reason as long as the claim isn’ t specifically excluded from coverag e. As the business owner, Family Co is responsible for providing a work environment that is free from har assment and dangerous conditi ons, it is incumbent upon them to be able to financially mitigate each potenti al claim. The financial instrument in this case would be an insurance pol icy. In general, risk mitigation is a “pr e-incident” or “pre-claim” conside ration. Properly identifying all the potenti al risk factors of a business is esse ntia l to understanding the total risk profile. Continued on page 15



The Employee’s Side

4) Included requests for sex; and

Continued from page 10

5) offensive.2

Co. is so strongly motivated to avoid publicly embarrassing Blanch, its founder’s daughter, that it agrees to settle. Realistically, Family Co. will require Veronica to resign.

Albert using Vendor Co. accounts for his barrage of emails and texts does not relieve Family Co. of responsibility for third party harassment of Veronica, which it knew or should have known about and failed to timely correct.3 Plus, at least the emails and maybe the texts landed in Veronica’s Family Co. inbox.

The Case Against Family Co. for Albert’s Hostile Environment Sexual Harassment The California Fair Employment and Housing Act (FEHA) requires employers of any size to provide a workplace environment free from harassment because of one’s sex or gender. An employer is responsible for non-employees’ sexual harassment of its employees “…if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.1” The facts show that sometime in 2016 Albert’s sexually charged behavior turned Family Co. into a sexually hostile environment for Veronica. His behavior was: 1) Unwanted and unwelcomed by Veronica; 2) Physical and verbal, 3) Sex-based and/or of a sexual nature;

Sexual harassment is more than politically incorrect behavior; it must be sufficiently severe or pervasive to alter the terms or conditions of employment. Unless it is extreme, one incident is typically not enough. The “totality of the circumstances” of each case is crucial, but courts have found physical groping enough.4 Here, since 2016, Albert engaged in a great deal of unwelcome physical groping.

Any one of Albert’s “trap, slam and grope” incidents could be “severe.” Combined, they are not only well beyond “severe or pervasive,” they are severe and pervasive. Because Albert is at Family Co. nearly every day, hanging out near Veronica’s desk, constantly asking her out, trapping her alone, hugging, kissing, grabbing her buttocks, slamming his penis into her backside, tripping her, verbalizing his sexual fantasies about her, in person or in email and text messages, it seems irrefutable that even before his June 6th assault, he interfered with the terms and conditions of her employment. Given Albert’s constant bad behavior, it is very unlikely Blanch was unaware of it, even before Veronica reported it in 2018. By failing to take immediate, appropriate corrective action back in 2016 and certainly in February 2018, Blanch connected Family Co. to Albert’s sexual harassment.

Possible Family Co. Defenses Family Co. may raise the defense of statute of limitations, arguing Albert’s behavior stabilized in 2016 (in an effort to argue that the FEHA’s one year look-back period ran out in 2017). However, since Albert’s behavior is becoming increasingly more violent and there is plenty of bad behavior happening in 2018, this is a weak argument. Albert’s harassment is a continuing violation and the 2016 behavior is part of it.5 Albert’s violence should satisfy both the objective standard of what a reasonable woman in Veronica’s position at Family Co. would find hostile or abusive and the subjective standard of how hostile or abusive Veronica found it. Since the abuse was so blatant and constant, Family Co. may face sexual harassment claims from Veronica’s co-workers as well.


September 2018

Albert’s June 6th After Work, Off-Site Attack

Worker’s Compensation Preemption

Standing alone, Albert’s June 6th physical attack was sufficient sexual harassment: he stalked Veronica, followed her to her parked car after work, then pushed her against the car, choked and sexually touched her until a Family Co. employee pulled him off her. She feared being raped and was injured. If her car was parked on Family Co. property, it is easier to tie Family Co. to the attack, but employers can be also be liable for after work, work-related off-site sexual harassment. If the rescuing Family Co. employee was a supervisor, that employee had a duty to report the attack, even without Veronica’s consent. Blanch definitely had that obligation since she met Veronica at the urgent care clinic, saw the extent of her injuries, yet again failed to take immediate and appropriate corrective action.

FEHA claims are exempt from Worker’s Compensation preemption.. If Veronica pursues a Worker’s Compensation claim, she should be sure any settlement release excludes her sexual harassment claims.

Conclusion Veronica has options here, but she needs good advice on how to protect them. Anyone in her position is advised to seek counsel on how to protect their rights in their specific circumstances. 1. Gov. Code §12940(j)(1).

Marjorie Wallace represents individual business and government professionals and midlevel managers in discrimination, whistleblower retaliation, defamation and Labor Code claims. She is a past president of the CCCBA Employment Law Section and co-chaired a CCCBA subcommittee that implemented and administered a threeyear grant received from the California Lawyers Association. Contact her at

2. Elements are set out in 2 Cal. Code Regs. §11019(b)(1). 3. Gov. Code §12940(j)(1). 4. Herberg v. California Institute of the Arts (2002) 101 Cal. App. 4th142,150-153. 5. Richards v. CH2M Hill, Inc.(2001) 26 Cal.4th 798.

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Workers’ Comp

Continued from page 11 Defendants here will argue that this was a merely personal matter that could have occurred anywhere. Veronica will contend that there is a connection with work because Veronica and Albert worked for Family Co. before they were married, and they worked together for significant periods of time every day in the shipping and receiving office. Albert used the working relationship as a scheme to rekindle the marriage. Because he worked in the shipping department with Veronica, he was able to track her movement throughout the day and plan and scheme his assaults. They were isolated in the shipping department, since no one intervened in the first assault. The company parking lot was certainly an isolated location he followed her to. He barraged her with texts and emails through her work email and work cell phone. Maybe he took the new job to harass her. All these facts need to be developed if the insurance company initially denies the case.

Section 5401 requires an employer to provide an employee with a claim form within one working day when an employer receives knowledge of an injury that caused lost work time or required medical treatment. In assault cases like this one, special notice is required described below. The filing of the claim form allows the injured worker to begin receiving worker’s compensation benefits and request a medical evaluation. It also triggers a 90-day period for the employer to investigate and evaluate the claim for acceptance or denial.

Notice Requirements

Labor Code Section 3553 requires that an employer provide an employee who is a victim of a crime that occurred at the place of employment written notice that the employee is eligible for workers’ compensation benefits for injuries, including psychiatric injuries, that may have resulted. The employer must provide this notice within one working day of the date of the crime or one (1) working day of the date the employer should have known of the crime. Notice is required in an assault case whether or not the employer has notice of injury as a result of the assault.

A workers’ compensation claim is made by the employee presenting the employer with a claim form. It is a one-page document that indicates the basic facts. Labor Code

Albert committed both assault and battery against Veronica in early 2018 and on June 6, 2018. Blanch’s duty to provide Veronica

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with written notice that she is eligible for workers’ compensation benefits was triggered both when Veronica told Blanch in February 2018 of the early 2018 assault and battery at the workplace, and most certainly when Albert tried to choke Veronica and tried to rape her in the Family Co. parking lot. Blanch was required to give Veronica notice under Labor Code Section 3553 when Veronica called her. When Veronica notified Blanch of the medical care and lost time from work on June 6, 2018, Blanch should have provided Veronica with the claim form. Since Blanch failed to provide Veronica with the required paperwork, Veronica should download the DWC-1 claim form from the Department of Industrial Relations website, and file a claim for cumulative trauma injury. She should then hire an experienced workers’ compensation attorney to represent her.

Elaine Deane is a partner at the Law Offices of Grundman and Deane in Walnut Creek. She represents individuals in workers’ compensation, personal injury and labor law. She has practiced law for 30 years. Previously, she practiced business litigation representing corporations and insurance companies.


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Insurance Considerations

Continued from page 11

Scenario Recommendations This scenario has several circumstances from a risk management/ insurance perspective that are obviously concerning: this attack happening on company premises, company time and perpetrated by a company vendor known to company management to be harassing company employees.

The most important part of risk management /mitigation is to control the things you can control to reduce your potential exposure. Obviously, Family Co. cannot control what doesn’t happen on company property, but they are fully responsible for everything that happens ON company time and property. There are also circumstances/risks that occurred on company property and time that are also not in the control of the company, these are known as operational risks. Knowing this, it is imperative to properly train managers and supervisors in risk management. All employers in California are required to have an Injury and Illness Prevention Program (IIPP).

Assumptions For this scenario, we are assuming that the company is carrying Workers’ Compensation insurance and General Liability Insurance. Many small business owners aren’t always fully aware of the spectrum of different policies that cover dissimilar risks and unfortunately usually learn the hard way

about policy limits and exclusions. Employment Practices Liability Insurance (EPLI) is all too often either not a consideration or not an expense the company would be willing to pay for.

Workers’ Compensation Insurance Policy Workers’ Compensation insurance is one of only two insurance policies required by law, the other being Auto Liability. Not carrying a Workers’ Compensation (WC) policy is a criminal offense, with significant penalties for the business owner. The fact that this attack happened in the company parking lot on company time most likely qualifies the injuries to be covered by Worker’s Compensation (for more in-depth legal analysis on the applicability of WC, see Elaine Dean’s article). WC provides five basic benefits: medical care, temporary

disability benefits, permanent disability benefits, supplemental job displacement benefits, and death benefits.

The part of WC that many businesses do not know about or understand is Employers Liability. Part II of a WC policy is an endorsement called: Employers’ Liability (EL) with a $1 million limit. Basically, EL is intended to protect the employer from legal liability arising out of an employee injury. Continued on page 16

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Insurance Considerations

Continued from page 15 Within a WC claim, legal liability is a separate issue from the actual benefits paid for an injury. EL is liability protection if the employer were accused of somehow being responsible, fully or in part, for an employee injury. Several examples of claims that would be covered are: Third Party Over Actions and “Dual Capacity” suits relating to injured employees. In this case, the injuries and medical cost would be covered by WC. If Veronica chooses to sue Family Co. for her injuries, EL coverage would be a key coverage in protecting Family Co.

the operational risk facing the business begins to be dispersed to those mid-level managers, yet the responsibility remains with the business owner.

made), there would be coverage in case Veronica decided to file a suit for hostile work environment, infliction of emotional distress or sexual harassment.

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Employment Practices Liability Insurance (EPLI) Another policy that would provide coverage for a potential claim against Family Co. would be known as an Employment Practices Liability Insurance Policy, or EPLI. EPLI policies provide specific coverages to employers against claims made by employees for several categories including: sexual or workplace harassment, discrimination, wrongful termination, invasion of privacy, breach of contract, wrongful demotion, humiliation and several others. Properly mitigating these potential operational risks requires having a policy in place prior to the occurrence/claim. Experience has shown that an EPLI policy is highly recommend when a company grows past 20 full-time employees, yet many companies with 50 or fewer employees choose not to carry it. At 20 employees, spans of control are typically stretched and the owner isn’t involved in every aspect of the business and begins to rely on managers or supervisors. Once that happens, control/mitigation of 16

September 2018

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Resolving the Workplace Conflict Can Veronica Return to Family Co.?

by Margaret J. Grover Our story picks up where that saga ended. “Veronica has tried for several weeks to contact Blanch, who has not returned her calls and has instead responded via email with short responses. Veronica’s month of FMLA leave is almost over and she must decide what to do.” Veronica believes that she is ready to return to work, but worries that she will not be safe at Family Co. The domestic violence clinic has told Veronica that she has a right to a safe work environment and that California laws give certain rights to victims of domestic violence. Veronica is already disappointed with Family Co.’s lack of response to her needs, particularly with the lack of support from Blanch, and has asked Family Co. to sit down with her and a neutral to agree on the terms of her return to work. You, an experienced mediator, are the lucky neutral. Your research reveals that Veronica does, indeed, have workplace rights. California Labor Code sections 230 and 230.1 provide, among other things, that an employee who is a victim of domestic violence may have protected time off to appear in court, to obtain protection, to secure housing, and to engage in safety planning. Section 230 also requires the employer to provide a reasonable accommodation to assure the safety of an employee who is a victim of domestic violence. Employees whose statutory rights are violated may obtain reinstatement, lost wages and benefits, and appropriate equitable relief. Because Blanch is a Family Co. manager and knew about the assault


September 2018

and escalating threats, Blanch’s failure to initiate reasonable action to assure a safe work environment and her teasing response to Veronica’s need for time off, Family Co. may already have exposure to a variety of claims, including claims for failure to provide a safe work environment, failure to provide a reasonable accommodation as required under the Americans with Disabilities Act and comparable California law, and retaliation for requesting or taking time off protected under the Family and Medical Leave Act, the California Family Rights Act, and Labor Code sections 230 and 230.1. Based upon your preliminary conversations with Veronica, she is more interested in returning to work than in bringing a lawsuit. Neither Veronica nor Family Co. have sought legal advice. Serving as a mediator where one or both parties do not have counsel can create ethical dilemmas for the mediator. California has not adopted a code of ethics that governs mediators in private settings. However, the best practice is for the mediator to encourage the parties to obtain legal advice before the mediation. Under Rule 3.853 of the California Rules of Court, “A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties.” When participants are not represented, it becomes tempting to provide legal advice and opinions throughout the course of the mediation. If Veronica and Family Co. each have their own advisors, you can point out the legal concerns and options, which they

can then review with their representatives before making their own decisions. Talking with Veronica and Family Co. and their representatives before the mediation will significantly increase the likelihood of success. The pre-mediation conversations can assist the parties in thinking about the session as collaborative, determining their own goals, and evaluating creative solutions. Premediation discussions may also demonstrate a need for one or both parties to evaluate solutions before coming together. Are there positions at Family Co. that Veronica could fill in which she would not have to interact with Albert? Does Vendor Co. have a person other than Albert who could service the relationship between Vendor Co. and Family Co.? If not, are there alternative vendors? What physical changes can be made to Family Co.’s facilities or Veronica’s workspace to provide

Veronica with greater protections and the ability to feel safe at work? Should Family Co. designate one or two people that Veronica can go to with concerns and, if so, who are they? Do the parties want to start in joint session or private session? Is there an expert who should be consulted before the mediation or brought into the session? Premediation discussions are a great opportunity to get the parties thinking about their desires and possible solutions, including non-traditional solutions. Once the formal mediation begins, you continue to encourage creativity and collaboration. Veronica and Family Co. and their representatives may not be familiar with the process or understand that the process is confidential. Explaining both the process and its confidential nature gives you an opportunity to begin developing relationships with all participants. You may also want to encourage the parties to agree

on a high-level outcome, such as “reaching agreement about Veronica’s return to work.” Finding workplace solutions through mediation can be very different than mediating a litigated case. Creating open communications, that allow both Veronica and Family Co. to express their concerns and desires is critical to success. If the parties are together, and one of them begins to shut down communications, you may need to intervene to assure that both sides have an opportunity to have their concerns heard. You may want to ask guiding questions, move within the room, take a break, or even separate the parties to assure that you understand everyone’s needs and desires. Discussing possible solutions too early in the mediation process may Continued on page 20


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Resolving Workplace Conflict Continued from page 19

result in a solution that does not meet everyone’s needs, a temporary patch, or impasse. In some mediations, there is a natural evolution of the discussion from needs to solutions. In others, you may have to use a combination of open-ended questions “Is there anything else that I should know at this point?” and intuition to decide when to move discussions toward solutions. As solutions begin to surface, continue to ensure that communications are open, the parties remain flexible, and that they are committed to finding an innovative solution that will allow Veronica to return to work. This may include a wide variety of items, such as date of the return, changes to her job, changes to her work station, flexible

time for her to continue in therapy or to obtain any court orders, an internal contact for support, Family Co.’s agreement to assist in obtaining a restraining order. Additional problems and solutions may surface as you move toward agreement. You assure the parties that the discovery of new concerns is normal, and they are making great progress. The solutions are myriad, but should be feasible, address the parties’ concerns, and accepted by all. Once you have agreement, you verify that everyone understands what they have agreed to do. You provide a written term sheet, or the parties or their representatives can collaborate on one documenting their agreement. Congratulations, you have rebuilt a relationship that had been seriously damaged!

Margaret Grover is a partner at Wendel, Rosen, Black & Dean, where she practices employment law. During her more than 30 years of practice, Maggie has represented both employees and employers and served as a neutral. She enjoys mediating workplace conflict and employment disputes, because she loves hearing the human stories and gets great satisfaction when the parties reach creative solutions that respect both sides’ perspectives.

Continued on page 20 20

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Women’s Section Annual Lunch The CCCBA Women’s Section’s Annual Luncheon was held June 27th on “Navigating Gender Bias in and out of the Courtroom and in Mediation,” from the perspectives of an accomplished trial attorney, current judge, and a retired judge/ JAMS neutral. Panelists included Hon. Ellen James (Ret.), JAMS mediator and arbitrator, Judge Anita Santos, and Renee Livingston, founder of Livingston Law. Chelsea Dunton was the moderator. The event was held at Maria Maria restaurant in Walnut Creek and included a networking session and a onehour MCLE elimination of bias presentation. Pictured top, the speakers for this event along with the board of directors for the Women’s Section. Right, Hon. Anita Santos and Hon. Ellen James. Below: Chelesa Dunton addressed the group.


September 2018

Take Me Out to the Ball Game On July 31, the CCCBA held it’s annual tailgate at the Oakland A’s game. It was a fun evening with good food, great friends and fantastic baseball. Lisa Reep surprises Suzanne Boucher at the tailgate. CCCBA members and guests feasted on delicious Mexican fare catered by El Paisa Taqueria.

Left: Tamina Alon, Vanessa Leonardo and David Erb Right: Adam Carlson, David Erb, Nick Casper and Courtney O’Hagan

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The Arbitration Conundrum: Practicalities and Alternatives to Consider Early By Mark LeHocky Assume that (1) Family Co. had an employment contract with Veronica containing a provision requiring arbitration of all disputes, and (2) she was told at the end of her FMLA leave that she must return to work immediately or she would be deemed to have resigned. For both Veronica and Family Co., that arbitration provision may pose a conundrum, with a series of practical tradeoffs to consider and choices to be made soon. Here are various issues and alternatives to consider all around, and early on.

As well, even if clear on its face and knowingly executed, the arbitration provision may violate principles of substantive fairness under many California cases. See, e.g., Armendariz v. Foundation Health Psychcare Servs., Inc. (2000) 24 Cal. 4th 83, 110-11 (employer must pay for all arbitrator fees and administration fees; arbitration provision may not limit employee’s FEHA remedies); Carlson v. Home Team Pest Defense (arbitration provision barring employee from seeking injunctive relief unenforceable).

Veronica’s Arbitration Issues

In turn, the enforceability of any arbitration provision may not be sorted out for some time, delaying resolution, particularly where the parties dispute the underlying facts. For example, did Veronica actually read and sign the arbitration provision – not just the overall agreement? Did she receive a copy of the referenced ADR provider’s arbitration rules? What was she told she would or would not be covered by the arbitration provision? While this all gets sorted out in court, Veronica’s work status remains unresolved, and the opportunity for repair and reinstatement may evaporate.

As experienced employment counsel know, the existence of an employment arbitration provision is often just the start of a number of conversations and possible quandaries, rather than a clear path forward. Depending upon whether the arbitration provision was clearly delineated, adequately explained (in all relevant languages), and separately executed, it may not be enforceable. See, e.g., Juarez v. Wash Depot Holdings, Inc., Cal. App. 5th (7/3/18; Civ. No. B282667) (Spanish version did not match English version that excluded PAGA claims from mandatory arbitration); Baxter v. Genworth North America Corp., (2017) 16 Cal. App. 5th 713 (arbitration agreement voided where employee required to sign as a condition of continuing employment); Carbajal v. CWPSC, (2016) 245 Cal. App. 4th 227, 245 (failure of arbitration provision to specify which ADR provider rules applicable invalidates mandatory arbitration requirement). 24

September 2018

Family Co.’s Arbitration Issues Concurrently, Family Co. should weigh the practicalities of its arbitration provision quickly. Even with an enforceable provision, Family Co. must quickly assess the costs and benefits of arbitrating any dispute. The fees and costs for

qualified arbitrators – which must be borne solely by the employer -- can run to tens of thousands of dollars, as it involves ongoing case management, discovery disputes, preparation for and conducting the arbitration hearing, and issuing a written decision. These costs are tripled when the arbitration provision calls for three arbitrators rather than one. As well, delays in moving to compel arbitration often lead to such motions being rejected. In other words, invoking arbitration is often a costly decision that needs to be made quickly. Other uncertainties about arbitration should also be considered.

While recent U.S. Supreme Court cases have upheld arbitration requirements in employment and other settings, the California Legislature may in 2018 – as they did in 2015 – bar mandatory arbitration of employment disputes. Although Governor Jerry Brown vetoed the 2015 legislation, 2018 may see a different result, leaving more uncertainty for new and pending employment arbitrations. Fortunately, faster, less costly and more certain alternatives exist for everyone. Here are two:

Renegotiate the Playing Field If the arbitration provision has problematic aspects – say for example a failure to specify which underlying rules apply – chances are Family

Co.’s counsel knows that as well. Rather than a court battle over its enforceability (which the Court may resolve to no one’s full satisfaction), the parties can negotiate a level playing field themselves. Directly negotiating away onerous provisions is usually much quicker than awaiting a court decision, saving everyone time, money and opportunities.

Mediate Before You Arbitrate As described above, employers face significant expense – both counsel and arbitrator fees – if a matter is fully arbitrated. As well, while arbitrations are routinely faster toward resolution than court litigation, and the parties can select expedited procedures or ADR provider rules targeting faster resolution, everyone still faces delay and lost opportunities if the dispute is fully arbitrated. Here, consider mediating early on, for all of these core reasons:

Besides excising problematic terms, the parties can also tailor the arbitration to best fit the particular case. While adversaries may not immediately agree as to scope of discovery or other procedural steps, they can adopt one of various ADR provider rules that authorize the arbitrator to do so. Doing so typically enables the parties and arbitrator to scale the amount of work to the needs of the particular case – eliminating extremes on each end.

• Both sides have obvious reasons to get the dispute behind them sooner. Here, Veronica could return to work under safe and reasonable conditions or move forward elsewhere, and Family Co. can save arbitration costs and achieve closure sooner as well. Continued on page 26



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Mark LeHocky is a former litigator specializing in complex business and employment disputes, the former general counsel to two public companies, and a fulltime mediator and arbitrator with Judicate West, where he also serves as its Director of Commercial Arbitration. Named among the Best Lawyers in America for Mediation repeatedly by U.S. News—Best Lawyers©, Mark LeHocky has also taught Mediation Advocacy at the University of California, Davis’ School of Law and is on the adjunct faculty at the University of California, Berkeley’s Haas Graduate School of Business. His profile is on


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• Finally, mediation allows everyone to explore solutions that neither a court nor an arbitrator can compel. With this multi-party dispute involving Veronica, her employer, her ex-husband and his employer, creative solutions could be explored via mediation.

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Continued from page 25

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The New Rules of Professional Conduct

What You NEED to Know! The State Bar will implement 69 new Rules of Professional Conduct, effective November 2018. The Rules will apply to more than 250,000 attorneys licensed in California. As the first overhaul of ethics rules in nearly 30 years, these Rules represent some fundamental changes.

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Sponsored by CCCBA’s East County Lawyers

Sponsored by CCCBA

$25 Non-members

George D. Carroll Courthouse, 100 - 37th St. Dept. 30 - Room 209 Sponsored by CCCBA’s West County Section

$25 Non-members

Richard E. Arnason Justice Center, 1000 Center Dr., Dept. 34, Courtroom B

$35 Non-members

John F. Kennedy University College of Law, 100 Ellinwood Way, Room S209-213

Carol M. Langford is a lawyer specializing in attorney conduct and discipline matters. She also represents students in admissions matters. She is an adjunct professor of professional responsibility and the past Chair of the Committee on Professional Responsibility and Conduct. She served on the Commission for the Revision of the Rules of Professional Conduct. Jerome Fishkin of Fishkin & Slatter, LLP counsels attorneys on issues involving attorney ethics, disqualification motions, law practice management, sanctions, dealing with toxic clients and coping with legal bullies. He represents attorneys at the State Bar and in federal disciplinary proceedings. He represents law students in moral character proceedings. He is also a renowned speaker and author, posting updates on new attorney ethics cases every month at Mary Grace Guzmán is currently the conflicts attorney at Covington Burling LLP. She was formerly an associate at Fishkin & Slatter LLP, where she focused on moral character, state bar representation and attorney ethics advice and counsel. She gives MCLE lectures on diversity and professional responsibility and has specialized in attorney professional responsibility for over 5 years.

We gratefully acknowledge our


Firms with 30+ attorneys: Archer n Norris Miller Starr Regalia

Firms with 20-29 attorneys: Bowles & Verna LLP Littler Mendelson P.C. McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP

Firms with 15-19 attorneys: Buchman Provine Brothers Smith LLP Clapp Moroney Vucinich Beeman Scheley Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci

Firms with 5-14 attorneys: Barr & Young Attorneys

Gillin, Jacobson, Ellis,Larsen & Lucey

Bramson, Plutzik, Mahler & Birkhaeuser LLP

Greenan Peffer Sallander & Lally LLP

Brown, Gee & Wenger LLP Craddick, Candland & Conti Doyle Quane Freeman Family Law Group Edrington, Schirmer & Murphy Ferber Law APC Galloway, Lucchese, Everson & Picchi 30

september 2018

Hartog Baer Hand APC Kilpatrick Townsend & Stockton Livingston Law Firm P.C. Morrill Law Firm Whiting, Fallon, Ross & Abel LLP

State Bar-Required Live Scan Fingerprinting

Scheduled for your convenience! Under California Rule of Court Rule 9.9.5, all active attorneys licensed in California must be re-fingerprinted by April 30, 2019. Failure to follow these instructions may be considered non-compliance with State Bar of California fingerprinting rule and may subject attorneys to penalties.

Martinez – CCP Office

Thursday, September 27 10:00 am - 4:00 pm CCCBA Criminal Conflicts Panel Office; 820 Main Street, Suite 1, Martinez

The CCCBA is working with local Live Scan company, Sealed with Integrity to make sure you have multiple opportunities to get your fingerprints taken. Check the online calendar for more dates. We hope to make this as convenient for you as possible.

Concord – CCCBA Main Office Friday, October 19 10:00 am - 4:00 pm CCCBA Main Office 2300 Clayton Road, Suite 520, Concord

Walnut Creek – CCCBA Happy Hour at Calicraft Thursday, October 25 4:30 pm - 7:00 pm Calicraft - The Taproom 2700 Mitchell Drive Walnut Creek

What You Will Need to Bring: 1. Your Personalized pre-populated Live Scan Form: Visit the State Bar website and download and print out your form. Find it via your specific ‘My State Bar Profile.’ 2. Payment: cash/or a check for $77; credit card for $80 (Make your check out to Sealed with Integrity) 3. Identification: Current drivers license or similar ID The process takes about 15 minutes.

Questions? Contact Theresa Hurley at 925.370.2548 or



Bar Fund Benefit in support of

Photo Courtesy of Commissioner Lowell Richards

With Grateful Appreciation

to our Sponsors* Platinum Archer Norris Hartog, Baer & Hand, APC CCCBA’s Estate Planning & Probate Section

Gold Acuna Regli Buchman Provine Brothers Smith, LLP Casper Meadows Schwartz & Cook Hanson Bridgett, LLP Retired Judicial Friends of Judge Arnason

Silver Bramson Plutzik Mahler & Birkhaeuser J.H. Bornstein, Attorney at Law Brown Gee & Wenger Budde Law Group Donahue Fitzgerald Paul Eisner, Attorney at Law Ferber Law Gagen, McCoy, McMahon, Koss, Markowitz and Fanucci Greenan, Peffer, Sallander & Lally LLP Horner Law Group JAMS The Law Offices of Johnson & Johnson Littler Mendelson McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP Miller Starr Regalia Mullin Law Firm Robert Half Legal Santaella Jahangiri LLP Whiting Fallon Ross & Abel

in support of

Contra Costa County Public Law Library and Richard E. Arnason Court Scholarship Program September 27, 2018 5:30 pm - 8:00 pm

Tickets: $85 at

Lafayette Veteran’s Memorial Center 3780 Mt. Diablo Blvd., Lafayette Tickets are available now!

About the Bar Fund: Since 1988, CCCBA has sponsored its BAR FUND Benefit to raise funds and consciousness about the need for pro bono legal services for low income members of our community.

Advertiser Index

California’s Wage Equality Law Continued from page 9

Acuna Regli. . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Celebrating the Life of Iris F. Mitgang . . . . . . . . . 6

ADR Services . . . . . . . . . . . . . . . . . . . . . . 12, 20

Morrill Law Firm. . . . . . . . . . . . . . . . . . . . . . . 17

Barr & Young Attorneys. . . . . . . . . . . . . . . . . . . 8

Perry Novak Wealth Management. . . . . . . . . . . 2

Law Ofices of Oliver W. Bray . . . . . . . . . . . . . 13

Pedder, Hesseltine, Walker & Toth, LLP. . 9, 14, 26

Diablo Valley Reporting Service. . . . . . . . . . . . 40

Candice Stoddard. . . . . . . . . . . . . . . . . . . . . . 14

First Republic Bank . . . . . . . . . . . . . . . . . . . . . 21

Lisa West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Robert B. Jacobs . . . . . . . . . . . . . . . . . . . . . . 15

Michael Young. . . . . . . . . . . . . . . . . . . . . . . . . . 9

Landmark Valuation. . . . . . . . . . . . . . . . . . . . . 13

Youngman Ericsson Scott. . . . . . . . . . . . . . . . . 25

Hubert Lenczowski. . . . . . . . . . . . . . . . . . . . . 25

Zandonella Reporting Service . . . . . . . . . . . . . 19

Is your ad on this list? Contact Carole Lucido for information on how you can reach our influential audience at (925) 370-2542 or

Classified Ads Tax Tips from the Tax Lawyer: Office SPACEs available in Downtown Lafayette Two separate office spaces available in a prominent law firm (since 1955) building in Lafayette. Free parking. Office on ground floor includes access to common kitchen area, conference room, law library, copy & postage machine. Office upstairs (larger space) also has same access during normal business hours. Beautiful Creekside setting. For more details, please call Janelle at 925-283-6816.

Walnut Creek Law Office Space Available

Beautiful, brand-new centrally located, full-service office in class A Building only one block from BART. Use of conference room and kitchen included. Perfect for solo attorney. Contact Jessica at (925) 939-9880 or jodea@

Probate paralegal to attorneys

Sexual Harassment Settlements By Christina Weed

A new provision was added to the Internal Revenue Code (Section 162(q)) under the 2017 Tax Cuts and Jobs Act. Section 162 generally provides deductions for ordinary and necessary trade or business expenses. However, the newly newly-added Section 162(q) provides that confidential sexual harassment and sexual abuse settlements are no longer tax deductible as ordinary and necessary business expenses. Section 162(q) states: (q) Payments Related to Sexual Harassment and Sexual Abuse. No deduction shall be allowed under this chapter for – (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment. This new provision applies to payments made after December 22, 2017. Christina Weed, JD, LLM (Taxation) is a Partner at Mendes Weed, LLP in Walnut Creek and a Co-Founder of Weed Law, PC. Weed is the Chair of the Tax Section of the CCCBA.;; (925) 390-3222

Joanne C. McCarthy. 2204 Concord Blvd. Concord, CA 94520. Call (925) 689-9244. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER


The August Issue of Contra Costa Lawyer – Here’s What You Missed The Retro Issue

Thank you to Guest Editors Samantha Sepehr and David Arietta

If you haven’t had a chance to read this issue, you’re in for a treat. As our first Interactive edition, you will find many photo features and even a chance to test your knowledge and memory of what practicing law was like in Contra Costa County in the 1970s, 1980s and 1990s Check it out online today at!

Feature Articles: Guess Who! Photos from CCCBA Directories Ads from the Past Court Fees Then & Now Courthouse Quiz CCCBA Then & Now Some Things Never Change

More: Articles Over the Years

The Law in these Parts, by Don Bastin of the CCC Historical Society

Columns: Message from James Wu, CCCBA President: Catching Up with Lisa Reep Bar Soap by Matt Guichard Coffee Talk: Share a Memory of When You Started Practicing in Contra Costa County

Find it online at 34

September 2018

Calendar Upcoming Events | Overview September 5 - October 10 | Family Law October 2 | CCCBA & East County Lawyers 2018 Family Law Training Series - The Basics more details on pages 27 and 36

September 11 | Employment Section Wage and Hour Extravaganza more details on page 36

September 11 | Womens Section

Women’s Section Happy Hour more details on page 36

September 12 | Diversity Committee Diversity Networking Event with Minority Bar Associations more details on pages 28 and 36

September 14 | CCCBA The New Rules of Professional Conduct – What You Need to Know! more details on pages 29 and 36

September 14-15 | CCCBA Collaborative Interdisciplinary Trusts & Estates Team Training more details on page 36

The New Rules of Professional Conduct – What You Need to Know! more details on pages 29 and 37

October 18 | Women’s Section Women’s Section Annual Awards Dinner 2018 more details on page 37

October 19 | CCCBA State Bar Required Live Scan Fingerprinting for CCCBA more details on pages 28 and 37

October 23 | CCCBA The New Rules of Professional Conduct – What You Need to Know! more details on pages 29 and 38

October 24 | Employment and Tax Sections Tax Consequences of Employment Law Settlements and More … more details on page 38

October 25 | CCCBA

September 20 | EPP and IP Sections

CCCBA Happy Hour Gathering

2018 Intellectual Property and Estates: Where Creativity and Planning Intersect

November 16 | CCCBA

more details on page 37

September 27 | CCCBA State Bar Required Live Scan Fingerprinting for CCCBA more details on pages 28 and 37

September 27 | CCCBA

more details on page 38

MCLE Spectacular

more details on pages 38 and 39

December 13 | CCCBA CCCBA Annual Holiday Party more details on page 38


more details on pages 32 and 37

The Contra Costa County Bar Association certifies that the MCLE activities listed on pages 35-38 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.



Sept. 5 – Oct. 10 | Family

September 11 | Employment

September 11 | Women’s

2018 Family Law Training Series THE BASICS

Wage and Hour Extravaganza

Women’s Section Happy Hour

Struggling to keep up with the continual but significant changes in the area of wage and hour laws in California? If so, join us for a panel discussion designed to help attorneys navigate the ever-changing waters of wage & hour single-plaintiff, PAGA and class action litigation. The panel, consisting of experienced practitioners representing both Employees and Employers, will also provide practical insights and best practices for effective representation of your clients.

What is a Women’s Section Happy Hour? Think LinkedIn but over drinks. The Women’s Section Happy Hour is an opportunity to meet and build professional relationships.


Six sessions presented on Wednesdays by judicial officers and highly-experienced family law attorneys. See page 27 for specifics on each session. Location: John F. Kennedy University, College of Law, 100 Ellinwood Way, Room S224, Pleasant Hill MCLE: 9 hours Family Law Specialization and 3 hrs. General MCLE credit Cost: The entire series may be FREE for CCCBA members who agree to accept two Moderate Means cases within one year. See page 27 for cost of individual sessions. Register: Online at More Info: Contact Barbara Arsedo at (925) 370-2544 or See page 27 for details.



Your RSVP is only to give us a general headcount. If you find, at the last minute, that you’re free and haven’t emailed, please come! Time: 5:00 pm - 7:00 pm

Time: 11:45 am – 1:00 pm

Location: MoMo’s, 1444 N. California Blvd., Walnut Creek

Location: Scott’s Seafood, 1333 N. California Blvd., Walnut Creek

Register: Please email the section at

MCLE: 1 hr. General MCLE credit

More Info: Contact Anne K. Wolf at (925) 370-2540 or

Cost: $35 Employment Law Section members, $30 Law Student Section members, $40 CCCBA members, $50 non-members Register: Online at More Info: Contact Anne K. Wolf at (925) 370-2540 or

CCCBA Diversity September 14 | CCCBA September 12 | Committee

Diversity Networking Event with Minority Bar Associations Come learn more about the different minority bar associations in the Bay Area, network and build new connections! Representatives from different organizations will speak about their organizations, upcoming events and networking opportunities. Join the CCCBA and a variety of Minority Bar Coalition organizations for free heavy appetizers and drinks. This event is open to all CCCBA members and guests. Time: 5:30 pm – 7:00 pm Location: Brown, Gee & Wenger, LLP, 200 Pringle Ave., Suite 400, Walnut Creek


The New Rules of Professional Conduct – What You NEED to Know!

Collaborative Interdisciplinary Trusts and Estates Team Training

Speakers: Judge Virginia George Carol Langford, Esq. Harpreet Sandhu, Esq.


Please join CCCBA as renown Professional Responsibility scholar, author, lecturer and attorney Carol M. Langford reviews, dissects and points out the nuances in the State Bar’s New Rules of Professional Conduct. Langford has the inside track on these new rules as she helped author them. Time: Noon – 1:15 pm Location: CCC Superior Court, 100 - 37th St., Dept. 30, Room 209, Richmond MCLE: 1 hr. Legal Ethics credit

RSVP: Online at

Cost: $15 CCCBA members, $25 non-members

More Info: Contact Anne K. Wolf at (925) 370-2540 or

Register: Online at

See page 28.

More Info: Contact Anne K. Wolf at (925) 370-2540 or See page 29.

september 2018

September 14-15 | CCCBA

Keith Brittany – MFT Alan Nobler, Esq. Kamela Laird, Esq. Maureen O’Connell, Esq. Jeff Lambert – CFP Nancy Ross – LCSW, BCD Beth McClelland – CFP, CPFA

Participants will learn: • Skills to begin a collaborative case • Protocols for trust and estates cases • Ethical considerations when working in the collaborative model Sponsored by Collaborative Practice California and Collaborative Practices of Silicon Valley and East Bay Time: 9:00 am – 5:00 pm both days Location: CCCBA Conference Room, 2300 Clayton Rd., Suite 520, Concord MCLE: 10 hrs. Estate Planning & Probate Specialization and 1 hr. Legal Ethics MCLE credit Cost: $475 CCCBA members, $495 non-members Register: Online at

and IP September 20 | EPP Sections

Intellectual Property and Estates: Where Creativity and Planning Intersect Speaker: Kelley A. Way, Esq. This presentation will cover the intersection of intellectual property and estate planning, and explain how to protect a client’s intellectual property so that it can be safely passed on to the next generation. Time: Noon – 1:15 pm Location: Kilpatrick Townsend & Stockton, 2175 N. California Blvd., #600 Walnut Creek MCLE: 1 hr. General MCLE credit Cost: $15 for Estate Planning & Probate, Intellectual Property and Barristers Section members, $10 for Law Student Section members, $20 for CCCBA members, $25 non-members Register: Online at

CCCBA and East October 2 | County Lawyers

The New Rules of Professional Conduct - What You NEED to Know! Speakers: Judge Leonard E. Marquez Carol Langford, Esq. Marie Quashnock, Esq. Please join CCCBA as renown Professional Responsibility scholar, author, lecturer and attorney Carol M. Langford reviews, dissects and points out the nuances in the State Bar’s New Rules of Professional Conduct. Langford has the inside track on these new rules as she helped author them. Time: Noon – 1:15 pm Location: CCC Superior Court, 1000 Center Dr., Dept 34, Courtroom B, Pittsburg MCLE: 1 hr. Legal Ethics MCLE credit Cost: $15 CCCBA members, $25 non-members Register: Online at More Info: See page 29.

September 27 | CCCBA

September 27 | CCCBA

State Bar Required Live Scan Fingerprinting for CCCBA

2018 BAR FUND Benefit

Under California Rule of Court Rule 9.9.5, all active attorneys licensed in California must be re-fingerprinted. The State Bar is requiring attorneys to resubmit fingerprints by April 30, 2019. Failure to follow these instructions may subject attorneys to penalties. CCCBA is working with local Live Scan company, Sealed with Integrity to make sure you have multiple opportunities to get your fingerprints taken.

For the past 30 years, Contra Costa County Bar Association’s BAR FUND has been proudly raising awareness of the need for pro bono legal services and assistance for low income members of our community. Each year, CCCBA members come together to learn about and support a worthy group. This year we will be fundraising for two worthy organizations – The Contra Costa County Public Law Library and the Richard E. Arnason Court Scholarship Fund.

Time: 10:00 am – 4:00 pm

Sponsorship opportunities available.

Location: CCCBA Criminal Conflicts Panel Office, 820 Main St., Suite 1, Martinez

Time: 5:15 pm – 7:30 pm

Cost: $77 paid by cash or check; $80 paid by credit card. (Make checks payable to Sealed with Integrity)

More Info: Contact Anne K. Wolf at (925) 370-2540 or See page 31 for details.

Location: Lafayette Veterans Memorial Center, 2780 Mt. Diablo Blvd, Lafayette Cost: $85 per person Register: Online at More Info: Contact Theresa Hurley at (925) 370-2548 or See page 32 for details.

October 18 | Women’s Section

October 19 | CCCBA

Women’s Section Annual Awards Dinner 2018

State Bar Required Live Scan Fingerprinting for CCCBA

Speaker: Alaleh Kianerci

Under California Rule of Court Rule 9.9.5, all active attorneys licensed in California must be re-fingerprinted. The State Bar is requiring attorneys to resubmit fingerprints by April 30, 2019. Failure to follow these instructions may be considered non-compliance with State Bar of California fingerprinting rule requirements and may subject attorneys to penalties. CCCBA is working with local Live Scan company, Sealed with Integrity to make sure you have multiple opportunities to get your fingerprints taken.

The Women’s Section will honor the 2018 recipient(s) of the Honorable Patricia Herron and the Honorable Ellen James Scholarship, and present the first Annual Women’s Section Outstanding Woman Lawyer Award (OWL). Our speaker, Alaleh Kianerci is the Santa Clara County Deputy District Attorney who prosecuted the ground-breaking Brock Turner rape case.Time: 5:30 pm – 8:00 pm Location: Scott’s Seafood – Garden, 1333 N. California Blvd., Walnut Creek MCLE: 1 hr. General MCLE credit Cost: $45 Women’s and Barristers Section members, $35 Law student Section members, $50 CCCBA members, $60 nonmembers Register: Online at

Time: 10:00 am – 4:00 pm Location: CCCBA, 2300 Clayton Rd., Suite 520, Concord Cost: $77 paid by cash or check; $80 paid by credit card. (Make checks payable to Sealed with Integrity)

More Information: Contact Anne K. Wolf at (925) 370-2540 or See page 31 for details.



October 23 | CCCBA

Employment and October 24 | Taxation Sections

The New Rules of Professional Conduct - What You NEED to Know!

Tax Consequences of Employment Law Settlements and More…

Speakers: Jerome Fishkin Mary Grace Guzman

Speakers: Beth W. Mora, Esq. Christina Weed, Esq.

The Rules of Professional Conduct go into effect on November 1, 2018. They have been totally rewritten. Many of the principles remain the same, but there are some significant changes. restriction limited to situations where a lawyer actually had confidential information. We will focus on the significant changes.

A discussion of the intricacies of the tax implications of the ever-more-popular employment settlement agreements will be discussed by Tax Section chair Christina Weed and employment law attorney Beth Mora.

Time: 5:30 pm – 7:00 pm Location: John F. Kennedy University, College of Law, 100 Ellinwood Way, Room S209-213, Pleasant Hill

Location: Scott’s Seafood, 1333 N. California Blvd., Walnut Creek MCLE: 1 hr. General MCLE credit

Cost: $20 Members, $35 non-members

Cost: $35 for Employment Law and Tax Section members, $30 Law Student Section members, $40 CCCBA members, $50 nonmembers

Register: Online at

Registration: Online at

More Information: Contact Anne K. Wolf at (925) 370-2540 or See page 29 for details.

More Information: Contact Anne K. Wolf at (925) 370-2540 or

November 16 | CCCBA

December 13 | CCCBA

MCLE Spectacular

CCCBA Annual Holiday Party

BREAKFAST KICKOFF Speaker: Leondra Kruger, California Supreme Court Justice

Join us in celebrating the holiday season! Enjoy festive hors d’oeuvres and drinks with your CCCBA colleagues. Please bring one non-perishable food item (or more) for donation to the Contra Costa Food Bank and/or toys for donation to the 26th Annual Toy Drive for homeless children, sponsored by the Juvenile Section of the CCCBA.

MCLE: 1 hr. Legal Ethics credit

LUNCHEON KEYNOTE Speaker: David Kelly, Golden State Warriors General Counsel & Vice President Afternoon PLENARY Speakers: Honorable Judge Jill Fannin, CCC Superior Court Presiding Judge 2018 Honorable Judge Barry Baskin, CCC Superior Court Presiding Judge 2019 Morning & Afternoon Breakout sessions TBA SPONSORS: Event Benefactor: JAMS Session Sponsor: Thomson Reuters Event Patron: ADR Services, Inc. Event Partners: Certified Reporting Services The Furstner Group | JFKU College of Law Location: Walnut Creek Marriott Hotel Sponsorship Info: Contact Anne K. Wolff at (925) 370-2540 or See page 39 for details. 38

Time: 11:45 am – 1:00 pm

September 2018

October 25 | CCCBA CCCBA Happy Hour Gathering Join us for this casual, no-host event, where CCCBA Board Members and Section Leaders gather together with CCCBA members in a relaxed, happy-hour setting to socialize CCCBA has arranged to have State Bar required live scan fingerprinting available at this event. Come and have fun and network with your fellow CCCBA members. Feel free to bring a friend or two... non-legal types always welcome! A gathering of CCCBA is hard to miss! Time: 4:30 pm – 7:00 pm Location: Calicraft – The Taproom, 2700 Mitchell Dr., Walnut Creek More Info: Contact Anne K. Wolf at (925) 370-2540 or

Time: 5:00 pm – 7:30 pm Location: CCCBA Building Conference Room, 2300 Clayton Rd., Concord RSVP: Online at More Info: Contact Anne K. Wolf at (925) 370-2540 or

CCCBA happy hours are a great way to network with your friends. Elle Emmanuel and Jon Abernethy socialize with CCCBA President Elect Wendy Coats and CCCBA President James Wu earlier this summer. We hope to see you at the next gathering!

Event Benefactor


24th Annual

MCLE Spectacular! Friday, November 16, 2018

8:00 am – 5:00 pm Walnut Creek Marriott | 2355 N. Main Street Registration begins September 10 | Early Bird Pricing through October 15

Breakfast Kickoff Speaker

Hon. Leondra Kruger Associate Justice of the California Supreme Court

A Conversation with California Supreme Court Associate Justice Leondra Kruger

Luncheon Keynote Speaker

David Kelly

General Counsel and Vice President, Basketball Management & Strategy, Golden State Warriors

Charting a Diverse Path in the Legal Profession

Afternoon Plenary Speakers


Event Presenters

Hanson Bridgett LLP Thomson Reuters Event Patrons

ADR Services, Inc. Event Partners BBVA Compass Certified Reporting Services Clio Colleen Callahan Insurance Services Exactify.IT The Furstner Group John F. Kennedy University College of Law Judicate West

Hon. Jill Fannin


Contra Costa County Superior Court Presiding Judge

Hon. Barry Baskin

Contra Costa County Superior Court Assistant Presiding Judge

Implicit Bias in the Courtroom

Sponsorship Opportunities Available Contact Anne K. Wolf (925) 370-2540,

Plus 6 morning and 7 afternoon breakout sessions to choose from.


Back by Popular Demand



Cocktail Reception, 5 to 6:30 pm Hosted by

Kilpatrick Townsend & Stockton LLP

Earn up to 8 MCLE Credits InCLudIng thE hard-to-gEt onEs!



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