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Contra Costa 

LAWYER Volume 29, Number 2 | March 2016

The first Contra Costa County courthouse in Martinez

Litigation Self-Study MCLE: How to Avoid Discovery Sanctions page 7

Jurors’ Use of Social Media During Trial page 10

Cross-examining a Forensic Expert page 22


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5/2015


Contra Costa  2016 BOARD OF DIRECTORS Elva Harding President Philip Andersen President-Elect James Wu Secretary Michelle Ferber Treasurer Nicholas Casper Ex Officio Ericka Ackeret Dean Barbieri Mary Carey Steven Derby Oliver Greenwood Renée Welze Livingston

David Marchiano Wendy McGuire Coats Dorian Peters Laura Ramsey Summer Selleck Katherine Wenger

LAWYER Volume 29, Number 2 | March 2016

The official publication of the

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

FEATURES SELF-STUDY MCLE: HOW TO AVOID DISCOVERY SANCTIONS by Vahishta Falahati

JURORS’ USE OF SOCIAL MEDIA DURING TRIAL

CCCBA   EXECUTIVE   DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org

by Steven T. Knuppel

CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo Emily Day

PRIVACY, CROSS-DEVICE TRACKING AND THE INTERNET OF THINGS

LRIS Coordinator Systems Administrator and Fee Arbitration Coordinator

Dawnell Blaylock

Communications Anne K. Wolf Coordinator Education and Programs Coordinator

Jennifer Comages

THE CIVIL LITIGATOR IN THE PROBATE WORLD: TOTO, I’VE GOT A FEELING WE’RE NOT IN KANSAS ANYMORE

CONTRA COSTA LAWYER Nicole Mills Suzanne Boucher 925.351.3171 925.933.1500

David Pearson Marcus Brown

925.287.0051 925.482.8950 Kelly BOARD LIAISON Patricia 925.258.9300 James Wu 925.658.0300 Inga Miller 925.402.2192 COURT LIAISON Novak Stephen Nash Perry 925.746.0245 925.957.5600 Samantha Sepehr DESIGN/ADVERTISING 925.287.3540 Dawnell Blaylock Candice Stoddard 925.370.2542 925.942.5100

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@cccba.org. 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.

14 16

by Geoffrey Wm. Steele

CO-EDITORS EDITORIAL BOARD

925.681.1774

10

by Angela Habibi

Membership Coordinator

PRINTING Steven’s Printing

7

CROSS-EXAMINING A FORENSIC EXPERT

22

BRINGING A POLICE EXCESSIVE FORCE CASE

25

by Roger M. Hughes

by Nick Casper

DEPARTMENTS

4

INSIDE | by Leonard E. Marquez

5

PRESIDENT’S MESSAGE: THE VALUE IN DIVERSITY | by Elva Harding

20 CENTER | 2016 Officer Installation [photos] Food From the Bar Comedy Night Announcement 28

PAGA AMENDMENTS: LIMITED RIGHT TO AVOID CIVIL PENALTIES FOR WAGE STATEMENT DEFECTS | by Margaret J. Grover

30 INNS OF COURT: LEGAL DEMEANOR/INTERPRETERS | by Matthew Talbot 35 CALENDAR 38 CLASSIFIEDS

Shown on the cover: Photo of the first Contra Costa County courthouse in Martinez, circa late 1800s. Used with permission from the Contra Costa County Historical Society. www.cocohistory.org CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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inside Leonard E. Marquez

dence in the legal profession and our judicial system, an attorney must be an example of lawfulness, not lawlessness.”2 For me, the imposing grandeur of our courthouses, old and new, is a reminder of these obligations. Each time we walk through their doors, we, as attorneys, should strive to add to, and not detract from, the concept of law as a noble, respectful and dignified institution and process.

A

ccording to the Contra Costa County Historical Society, the first courthouse in Martinez was completed in 1855. A pair of tall, grand Ionic columns rose from its front steps and a specially cast courthouse bell tolled to call the court to session and to announce jury verdicts. The bell had been brought to Martinez from a foundry on the East Coast. As long as there have been such grand courthouse edifices, there have been lawyers plying their trade in them, and as long as lawyers have been matching wits in the courtroom, there has been the question of fair play and respect between adversaries and for the legal system they serve. John Forrest Dillon, a federal judge in the late 19th century and president of the American Bar Association, wrote in “The Laws and Jurisprudence of England and America,” published in 1894, that “ethical considerations can no more be excluded from the administration of justice, which is the end and purpose of all civil laws, than one can exclude the vital air from his room and live.”1 It is as true today as it was then—civility, respect and the way lawyers comport themselves reflect directly on the rule of law and the role of our legal institutions as a process and means toward the goal of fair and equal justice for all. As observed by the California Court of Appeal in People v. Chong, “[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility and professionalism in the practice of law. In order to instill public confi-

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Several of this month’s articles deal with ethical issues. Vahishta Falahati’s article “How to Avoid Discovery Sanctions” advises counsel on the boundaries of attorney conduct in discovery and the rules that apply. Steven Knuppel explores ethical issues relating to the interplay of jurors and social media. On a similar thread, Angela Habibi contributes her article on the ramifications of tracking consumer habits through the interconnectivity of their Internet devices. Being mindful of the rules is also a theme of Geoffrey Steele’s piece about things for which civil litigators new to probate litigation ought to be on the lookout. The articles are rounded out by Roger Hughes’ article on cross-examining a forensic expert and Nick Casper’s primer on bringing a police excessive force case. Many thanks to each of the contributing authors for their great articles. s Leonard E. Marquez is a civil litigation attorney with the law firm of Wendel, Rosen, Black & Dean, LLP, in Oakland. Founded in 1909, Wendel Rosen is a leading East Bay law firm. Leonard’s practice focuses on landlord-tenant disputes and commercial evictions, as well as general civil litigation. A graduate of the UCLA School of Law, he received his undergraduate degree from Princeton University. To learn more about Wendel Rosen, please visit www.wendel.com or contact Leonard at lmarquez@wendel.com. 1

See People v. Chong (1999) 76 Cal.App.4th 232, 243.

2

People v. Chong, supra, 76 Cal.App.4th at 243.


president’s message

The Value in Diversity

T

he CCCBA is committed to increasing diversity in the legal profession. To this end, we are developing programs to support local firms in their efforts to become more diverse. Still, some pose the question, why should law firms be concerned about diversity? Well, there are many sound reasons, but let’s just look at one today: Financial success. McKinsey & Company, the global management consulting firm, recently released their white paper, “Diversity Matters,” which explains the financial and practical benefits of diversity to corporations. I believe these lessons apply equally well to the legal profession. First, let’s take a look at the current make up of the legal profession. Although men and women graduate from law school in roughly equal numbers, the ABA revealed in its 2014 report “A Current Glance at Women in the Law,” that women comprise only about 34 percent of lawyers and, in private practice,

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make up only about 20 percent of partners and 17 percent of equity partners. According to the National Association of Law Placement, racial/ethnic minorities make up less than 6 percent of equity partners, although they comprise about 39 percent of all lawyers. While minorities and women make up a significant part of the legal profession, they are not advancing to leadership roles in proportion to their numbers. The lack of women and minorities in leadership positions represents a financial loss for law firms. According to the McKinsey report, there is a direct correlation between diversity and financial performance. The report explains that companies that are in the top quartile for racial diversity are 35 percent more likely to achieve superior financial results than their fourth quartile competitors. Those that are more gender diverse are 15 percent more likely to achieve superior financial results. The international management consulting firm, Boston Consulting Group, also looked at the financial success of diverse companies and found that for each 1 percent increase in gender diversity, companies achieve a 3 percent gain in revenue, and a 9 percent gain for each 1 percent increase in racial diversity. Such figures represent significant opportunities for law firms that should not be overlooked. What is driving the financial benefits? According to McKinsey, there are a number of reasons. First, diversity gives firms an advantage in

Elva Harding CCCBA Board President recruiting top talent in competitive markets. It is important to recruit from the broadest pool possible, particularly when so many tech companies are also competing for top talent. A firm with diverse leadership can open doors to additional sources of talent and provide advantages in the recruiting process. Additionally, diverse firms are more successful at retaining talent. Employees report greater satisfaction in diverse companies. This satisfaction results in less conflict among employees and greater employee retention. Considering the cost of employee turnover, employee retention is a significant benefit to companies and firms. For companies in which minorities make up at least 15 percent of the workforce, their minority employees perform better, with more confidence and with greater selfesteem—ultimately making them more comfortable in their positions. This success also helps to break down prejudices in the workplace that may be barriers to minority success.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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The Value in Diversity, continued from page 5

McKinsey also reports that by becoming more diverse, companies align themselves more closely with their potential customer base. Firms will be better positioned to develop relationships with diverse decisionmakers outside the firm, since they will be better able to understand the customer perspective and adapt accordingly. Diversity has an impact on decision-making and innovation. One researcher has found that heterogeneous teams are more likely to come up with broad array of arguments based on their personal experiences and offer alternative solutions in a timely fashion. A supporting article by the Center for Talent Innovation reported a correlation between diversity and better decision-making. Without diversity of ideas that come from diversity of experience, there can be little innovation. Understanding some of the causes of the lack of women and minorities in leadership can help lead to the solution. While there may be many causes for the lack of diversity in law firms, McKinsey’s report presents three causes from recent behavioral economics and social psychology studies. First, “implicit stereotypes” in which leaders associate particular groups of people with certain traits (for example, that men do math well and women handle creative matters) can affect hiring decisions. Second, “ingroup favoritism” in which individuals prefer to work with people of the same gender, nationality or race. Third, “outgroup homogeneity bias” in which individuals see their preferred group as more diverse than their “outgroup,” whom they see as very similar to each other. So how can firms become more diverse? It starts with planning.

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McKinsey suggests firms should plan for diversity by creating value propositions and setting targets, but not quotas, for diversity. Then assess where the firm is today—in terms of numbers and mindset. Next, create initiatives directed at achieving diversity—consider alternative work hours to accommodate working parents or business development goals that might better attract certain groups—and make sure those initiatives are shared with members of the firm through a clear and consistent message. It is important that the firm appreciates the value of diversity and leadership supports it. Finally, we all need to be aware of and fight unconscious bias which can undermine all of our best efforts. A link to the full white paper and its suggestions can be found at www.mckinsey.com/Insights/Organization/Why_diversity_matters.

AND

In a state like California, which is becoming ever more diverse, it doesn’t make sense to let an opportunity to create value slip through our fingers. In the same way we invest in technology and develop business plans to build our practices, we can enhance the value of our firms and practices by planning for diversity and putting strategies in place to achieve those goals. s Elva D. Harding is a real estate and business attorney and founder of Harding Legal, dedicated to providing efficient and effective legal service to individuals and small, mid-sized and family-owned businesses. Elva currently serves as CCCBA’s Board President. Contact Elva Harding at (925) 215-4577, eharding@edhlegal.com or visit www.edhlegal.com.

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How to Avoid MCLE SELF-STUDY

Please visit the Contra Costa Lawyer online at www.contracostalawyer.org and click on the Self-Study link at the top, then click on this article to download the MCLE Self-Study test form and instructions.

Discovery Sanctions

C

onducting written discovery is a crucial part of litigation. It serves an important purpose and is a practical and efficient way to obtain information and documents. Although utilizing written discovery is important and valuable if used properly, how you conduct yourself through the discovery process is also crucial and can have tremendous consequences for your client’s case. If you abuse the discovery process, you expose yourself and your client to sanctions.

Misuse of the Discovery Process Code of Civil Procedure section 2023.030 permits

by Vahishta Falahati the court to impose an array of discovery sanctions against anyone engaging in conduct that is found to be a “misuse of the discovery process.” The discovery statutes broadly define what constitutes such a misuse of the discovery process: • Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. • Using a discovery method in a manner that does not comply with its specified procedures. • Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment or oppression, or undue burden and expense. • Failing to respond or to submit to an authorized method of discovery. • Making, without substantial justification, an unmeritorious objection to discovery. • Making an evasive response to discovery. • Disobeying a court order to provide discovery. • Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. • Failing to confer in person, by telephone or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery.1 You—and anyone engaging in the offending conduct—may be monetarily sanctioned for any of the above conduct.2 Section 2023.030 mandates that the court impose a monetary sanction where such a sanction is authorized by any provision of the discovery statutes unless you can show “substantial justification” for your position or that imposition of sanctions is “unjust.”3 Sanctions are

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Discovery Sanctions, continued from page 7

sanction orders are “subject to reversal only for arbitrary, capricious or whimsical action.”11

not meant to punish; they are intended to prevent misuse of the discovery process.4

Some key points to remember in avoiding discovery sanctions—do not interpose objections that are merely “boilerplate.” You should take a critical approach to the specific objections you do make so that you can defend them as having merit if challenged.

Failure to Confer The court may also award sanctions under Code of Civil Procedure section 2023.020, which provides: “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” A failure to confer is a separate basis for monetary sanctions. Thus, counsel should respond to “meet and confer” letters promptly and address, in good faith, all issues raised by the propounding party. Even if your client’s position on the substantive discovery issues prevails, you may still be subject to sanctions if the court finds that you failed to adequately confer with opposing counsel to avoid a discovery motion.

If you are on the fence about the validity or force of a particular potential objection, you may well choose to err on the side of not making the objection unless it is related to a privilege and your client wishes to avoid a potential waiver. Boilerplate objections are sanctionable even if made only to avoid a waiver of the attorneyclient privilege.12 Discovery objections must be specific and you must be able to justify your objections; otherwise, you or your client may face sanctions if a court decides that there was no substantial justification for opposing a motion to compel further responses which challenges the substance of the objections.

Failure to Provide Responses or Providing Inadequate Responses If your client fails to provide timely responses, the propounding party may move to compel your client’s responses and seek monetary sanctions against you and your client.5 By failing to provide timely responses, you expose yourself and your client to sanctions and your client waives any objections, including those based on any privilege or attorney work product.6 If your client provides evasive, incomplete or insufficient responses, fails to produce all non-privileged responsive documents or objects without merit, the propounding party may also move to compel and seek sanctions against you and your client.7 The court must impose monetary sanctions against any party, person or attorney who unsuccessfully makes or opposes a motion to compel further discovery responses unless the court finds substantial justification or that imposition of sanctions is unjust.8 The court may also impose non-monetary sanctions for abuse of the discovery process. Those sanctions include: (1) issue sanctions; (2) evidentiary sanctions; (3) terminating sanctions; and (4) contempt sanctions.9 These forms of sanctions are usually issued when there are egregious abuses of the discovery process such as violating discovery orders, continuous use of obstructive tactics, “stonewalling” and repeatedly providing meaningless responses to written discovery.10 Discovery

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You should, therefore, always seek to counsel your client to provide responses in good faith and as best as the client can.13 Discovery responses must “reveal all information then available to the party” and cannot “plead ignorance to information which can be obtained from sources under [the party’s] control.”14 Like witnesses, parties “are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories” and a party may not provide “deftly worded conclusionary answers designed to evade a series of explicit questions.”15 On the flip side, strongly consider your grounds before filing a motion to compel. If your motion is denied and if the court finds the motion is made without substantial justification, the court will issue sanctions.


Written discovery is an invaluable tool used in litigation. Just be sure to use it for its intended purpose; otherwise, you expose yourself and your client to sanctions. s Vahishta Falahati is a principal attorney at Falahati Law, APC. She practices real estate law, emphasizing on litigation and transactions. 1

See Code Civ. Proc. § 2023.010(a)-(i).

2

Code Civ. Proc. § 2023.030(a).

3

Id.

4

Crummer v. Beeler (1960) 185 Cal.App.2d 851, 858.

5

Code Civ. Proc. §§ 2030.290, 2031.300 and 2033.280.

6

Code Civ. Proc. §§ 2030.290 (a), 2031.300(a) and 2033.280(a).

7

Code Civ. Proc. §§ 2030.300, 2031.310 and 2033.290.

8

Code Civ. Proc. §§ 2030.300 (d), 2031.310(d) and 2033.290(d).

9

Code Civ. Proc. § 2023.030 (b)-(e).

See e.g., Williams v. Travelers Insurance Company (1975) 49 Cal. App.3d 805, 810; Liberty Mutual Fire Insurance Company v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.

12

See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.

14

Id.

15

Id.

MCLE SELF-STUDY TEST To download the test form and instructions for this Self-Study MCLE article, visit www.contracostalawyer.org, and click on the “Self-Study MCLE” link at the top, then click on the article “How to Avoid Discovery Sanctions.”

10

11

13

Id. at 1102.

See Korea Data Systems Company Ltd. v. Superior Court (Aamazing Technologies Corporation) (1997) 51 Cal.App.4th 1513, 1516.

If you prefer to receive the test form via email, contact Anne Wolf at awolf@cccba.org or (925) 370-2540. Send your answers, along with payment ($20 for CCCBA members) to the address on the test form.

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Jurors’ Use of Social Media During Trial

by Steven T. Knuppel

I

n this connected, digital age, the traditional admonitions from the court to jurors about discussing a case or conducting their own investigations have been modified to reflect technological developments.1 However, available data indicates that such admonitions are commonly ignored.2 There is even a blog called “Jurors Behaving Badly,” that is devoted solely to this topic.3 Despite the best efforts of the participants in the process, the new practical reality may be that trial will need to be conducted on the assumption that one or more of your jurors will use social media during trial. In light of this, you must consider at the outset what material is available online about your client and manage the client’s online presence, to the extent it is ethical to do so. This begins with googling your client in advance of the initial meeting, so that any questionable search results can be discussed at the meeting. The search results may influence whether you even take the case.

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If you decide to represent a client that has negative material online, at least you will be coming into the case with your eyes wide open. During the initial meeting, the client should be advised that anything he or she posts may become evidence and to avoid discussing online anything related to the litigation. Some attorneys even put these admonitions into the attorney-client agreement.4 The thorniest question involves potential removal of problematic material that is already online. Such removal raises questions of spoliation of evidence. The analysis involves whether it is foreseeable that the material might be relevant in litigation. At least one commentator has suggested that the mere fact that an attorney would advise a client to remove material might demonstrate the foreseeability of its relevance.5 The California State Bar maintains a web page related to social media ethics issues.6 Neither that source nor the author’s independent research reveals any California

appellate opinion addressing the issue directly. The issue has been handled in some other jurisdictions via bar ethics opinions.7 The prevailing view thus far is that you can advise clients to adjust their privacy settings to provide for the maximum level of privacy. The opinions also suggest that the material may be deleted from social media pages altogether, provided that you retain hard copies of the material in the event that production is required. This step preserves the material, allowing it potentially to be obtained through the discovery process. However, unlike the scenario where information is freely available on the Internet and can be obtained by opposing counsel without notice, by taking down the material, you will be alerted to opposing counsel’s attempt to obtain the material and the ability to object and argue relevance is preserved. At the same time that you are considering the client’s online presence, you should consider your own


online presence. The impression projected by counsel for credibility and professionalism can make the difference in a jury trial. While most attorneys are sophisticated enough not to post embarrassing personal information, they might not stop to think about the impression that some of their other online content creates. “Puffing” online about your superior trial skills and thereby implying that you can achieve results larger than justified by the facts may help attract some clients, but it also can undermine your credibility with the juror who, despite the judge’s admonitions, has decided to Google you. In order for you to be effective, the jurors must always understand that you are a trustworthy source of information for them and your online content should reflect that. Because your online content, whether personal or professional, is rarely relevant to the issues in the litigation, you will have much

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more latitude to polish your online presence. Ideally, when you are in trial, you will have someone monitoring the social media of jurors to detect violations of the admonitions.8 Obviously, this will be influenced by the amount in issue and the size of your trial team. Social media habits can be covered in voir dire and may provide information to better monitor social media during trial, as well as potentially providing information as to whether you want the juror on the panel in the first place.9 Some commentators have suggested that jurors be asked for their Twitter handles to facilitate such monitoring.10 The trial of Conrad Murray (Michael Jackson’s doctor) in southern California made news for the use of social media to screen potential jurors.11 Diane Karpman reports in her California Bar Journal ethics column about an unpublished New

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Jersey case in which the appellate court found that it was unreasonable for a judge to prohibit an attorney from using the court’s public Wi-Fi to Google potential jurors.12 In a recent Missouri case, the Missouri Supreme Court indicated that members of the bar had a duty to use advances in technology to research jurors in a timely manner and instructed trial courts to “ensure the parties have an opportunity to make a timely search prior to the jury being empaneled.”13 Yet, in the survey of federal judges discussed above, 120 out of 466 responding judges indicated that they would not allow such use of online resources during voir dire. It seems reasonable to assume that the trend will be toward courts allowing counsel more use of social media information in voir dire. The trend in all areas of law has been towards greater use of technology, perhaps after some initial resistance. Further, potential jurors are increasingly spending more and more time on social media, so any process that seeks to ascertain their beliefs and attitudes must take that into account. Due to the unsettled nature of this area of law and its increasing importance, this is an area that is certain to have further developments. Trial counsel should check in from time to time with the State Bar’s website to stay updated on changes. In the meantime, don’t forget to Google your client—you never know what you might find. s Steven T. Knuppel practices civil litigation, including real estate litigation and tort litigation, from his office in San Ramon. 1

See California Civil Jury Instructions, CACI 100. 2

When Reuters monitored Twitter activity based upon the search term “jury duty,” results popped up “at the astounding rate of one nearly every three min-

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Use of Social Media, continued from page 11

7

New York County Law Association Formal Opinion 745; Philadelphia Bar Ass’n. Guidance Comm. Op. 2014-5 (2014). 8

utes.” While many were innocuous, “a significant number” contained blunt statements about substantive issues such as guilt or innocence in criminal trials. Reuters found that between January 2009 and December 2010, judges granted new trials or overturned verdicts in 21 cases. Even where judges declined to declare mistrials, Internet-related juror misconduct was found to have occurred in three-fourths of cases where verdicts were challenged on such bases. See http://www.reuters.com/article/internet-jurorsidUSN0816547120101208. However, there is one recent survey of federal judges by the Federal Judicial Center that concluded that juror use of social media during trial was not a widespread problem. See http://www.uscourts.gov/news/2014/07/29/survey-findsinfrequent-social-media-use-jurors. 3

See http://jurorsbehavingbadly.blogspot.com/.

4

“Web Offers Pearls of Wisdom, but also Legal Tangles” by Diane Karpman, California Bar Journal, August 2013. See http://www. calbarjournal.com/August2013/EthicsByte.aspx.

“Social Media Use by Jurors in the Courtroom: How Facebook and Twitter Could Affect Your Jury Trial” by William Pfeifer. See http://law.about.com/od/trialtechniques/a/Social-Media-Use-ByJurors-In-The-Courtroom.htm. 9

Counsel may access an adverse party’s social media page to the extent accessible to all network members, but may not send an access request to obtain restricted information (i.e., a “friend request” in Facebook parlance). New York State Bar Association Ethics Opinion. 843 (2010); ABA Formal Opinion 466: Lawyer Reviewing Jurors’ Internet Presence. See also, San Diego County Bar Association Ethics Opinion 2011-2, which contains similar analysis but involved a represented party. However, compare the New York City Bar Association Formal Opinion 2010-2 which allows friend requests as long as not deceptive. 10

“Social Media Use by Jurors in the Courtroom: How Facebook and Twitter Could Affect Your Jury Trial” by William Pfeifer. See http://law.about.com/od/trialtechniques/a/Social-Media-Use-ByJurors-In-The-Courtroom.htm. 11

See http://www.cnn.com/2011/09/20/tech/social-media/socialmedia-jurors-murray/.

5

“Social Media and Spoliation – Can a Client Delete Her Facebook Posts?” by Scott McConchie, National Law Review, September 29, 2014.

12

6

13

See http://ethics.calbar.ca.gov/Ethics/EthicsTechnologyResources/SocialMedia.aspx.

“Web Offers Pearls of Wisdom, but also Legal Tangles” by Diane Karpman, California Bar Journal, August 2013. See http://www. calbarjournal.com/August2013/EthicsByte.aspx. Johnson v. McCullough (Mo. 2010) 306 S.W.3d 551.

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Privacy, Cross-device Tracking and the Internet of Things

by Angela Habibi

T

he ways in which data is collected, compiled, stored and analyzed has changed over time. According to the Federal Trade Commission’s (FTC) workshop held last November, Chairwoman Edith Ramirez explained that we are no longer just talking about tracking on a single browser or single computer.

inferences on shared IP addresses or geolocation information in order to demonstrate that the devices are frequently used together. On this note, an episode of HBO’s “Silicon Valley” even coined the phrase “outed by Wi-Fi!” Further, panelist Joseph Turow opined that loyalty programs are essentially ways of collecting data

formation at gas stations for points and whenever making in-store purchases. Such information is subsequently used by advertisers for personalized coupons and rewards. Although sophisticated tracking techniques may also help companies in the realm of fraud protection programs, (through learning which devices are most often used to ac-

Rather, advertisement companies aim to follow consumers on various Internet of Things (IoT) devices, such as wearables, smart TVs, tablets, smartphones, desktop computers, laptops and more. This is commonly known as cross-device tracking. Cross-device tracking digitally follows a consumer in an effort to tell advertisers that the person seeing an ad on a smartphone is also the same person making a purchase on a desktop computer. The degree of linking that occurs across devices is based on two models: deterministic and probabilistic. Deterministic linking is information that a consumer actively provides to a website or service, like inputting information onto a Facebook account. The probabilistic technique is a form of passive collection based on

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through cross-device platforms as well. Such programs play out in different ways from airline miles, to hotel rewards, to what happens in Safeway. With the example of Safeway, Club Card members insert their in-

cess consumer accounts), they raise multiple privacy issues, including transparency. As Chairwoman Ramirez mentioned, “more extensive tracking allows companies to connect more and more of consumers’ offline ac-


tivities with their online activities. This results in more detailed and more personalized consumer profiles that are assembled, traded and shared by a growing number of entities in the data ecosystem.”1 Such data may be misused by unauthorized third parties and are left vulnerable to security breaches when stored in large quantities for long periods of time. Additionally, consumers may not be fully aware of such tracking, which increases the need for consumer education, as “there are almost no tools that allow individuals to know what devices are linked.” Moreover, while opting out may exist in some aspects, “most controls do not allow opting out of the underlying data collection and linking of identifiers.” Thus, opting out is primarily applicable to targeted advertisements alone. The FTC’s Justin Brookman gave helpful background information on cross-device tracking and explained the intricacies of the two different models. He shared that the browsing experience is much more fragmented today than in previous times because consumers use more devices generally. Devices are also getting smarter; even gaming consoles are growing more similar to computers. To this end, Brookman gave the example of TVs in saying that “Vizio updated their privacy policy to say they now have the ability to monitor and share information about what you’re viewing with third parties.”

Finally, as Maneesha Mithal mentioned in her closing remarks, “companies must be mindful of the representations they make, [because] if they are unclear, or deceptive, or creating opt out, or communicating the opt out in a way that conflicts with consumers’ understanding, there may be room for a Section 5 deception action.” Section 5 of the Federal Trade Commission Act is perhaps the most critical piece of U.S. Privacy Law. It reads, “unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”2 The FTC has enforced privacy and security violations over the decades and Congress has granted the Commission additional privacy-related responsibilities over time through federal statute as well.3 s Angela Habibi, J.D., is an IAPP Data Privacy professional and has obtained her LL.M. specialization in Intellectual Property Law from Santa Clara Law and Stanford Law. 1

https://www.ftc.gov/system/files/documents/public_ statements/881513/151116cross-devicetracking.pdf. 2

15 U.S.C. § 45(a)(1).

3

https://www.ftc.gov/system/files/documents/public_statements /735201/150813section5enforcement.pdf.

Brookman went on to state that social services platforms embed companies engaging in tracking onto their own sites and that email is used in large part for deterministic matching. In this way, because there is a “traditional reluctance to share personally identifiable information … they would share just a hashed version of that identifying information” instead. This would generate the same output and utilize email when a consumer uses it to log onto their desktop, iPad and more. Advertisement companies may also “embed a unique URL into the email,” therefore allowing companies to know “that the browser that opened” the ad is associated with a particular email. Probabilistic matching companies often partner with deterministic companies in using cookie syncs to show devices are related. Advertisement companies are also using Bluetooth and microphones “to listen to physical beacons or TV advertisements,” creating additional privacy concerns. Going forward, the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI) “have taken steps to enhance privacy protections in the online advertising space. These organizations’ self-regulatory principles encourage members to provide increased transparency and offer consumers control over data collection.” These organizations have also developed useful opt-out tools and enforcement in the mobile environment.

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The Civil Litigator in the Probate World

by Geoffrey Wm. Steele

g n i l e e F a t o G e v ’ I , s Toto a s n a K n i t o N e r ’ e W Anymore

R

ight off the bat, let me admit something: I am a rules guy! I love the rules and want them to be followed equally and without favor. Yes, of course, there can be special circumstances and even a bending from time to time.

Still, the civil litigator who first steps into probate litigation may have a bit of an awakening, as there are fundamental differences between the conduct of a case in probate versus the civil world. The rules are different and there are advantages that do not exist in the civil realm. The following are just a few examples of the potholes and advantages. First, civil litigators have to understand the verification rules as they apply to probate pleadings. Simply put, Section 1020 of the California Probate Code requires that any petition, objection, response, report or account filed has to be in writing (that’s a no brainer) and must also be signed by the petitioners, objectors or respondents, or by the persons making the report or account, and filed with the court clerk. Yes, that means that if you are objecting or responding to any pleading, your objection or response must also be verified even if you are just amending or supplementing your pleadings.1 The verification can be executed by any one of the parties that you may represent, if you represent more than one, but somebody has to sign.2 An attorney can sign the verification if a petitioner, objector or respondent is “absent from the county” or if, “for some other cause,” is not able to sign or verify the petition, objection or response. There is the caveat that this is impermissible where the person on whose behalf the attorney is signing is a fiduciary appointed in the proceeding (i.e., the attorney for the estate may not sign and verify a petition, objection or response filed by the personal representative).3 However, there are some probate judges out there that have been known to express displeasure when the pleading is verified by the attorney instead of the client. One axiom of civil practice is just as true in probate— know your judge. The next thing of which you must be wary is who actually gets served with a copy of a court pleading (used in the broadest sense of the word). In the civil world, we are used to simply serving the attorneys representing the parties. However, in probate litigation, all manner of people may be entitled to get notice of whatever it is that you are filing. The phrase “persons entitled to notice” carries with it all sorts of obligations to mail out pleadings to all manner of persons related to the case. The Golden Rule of Thumb (a terrible expression, I admit) is that you can never go wrong with serving everybody. For example, if you are dealing with a trust, then all the persons named in the trust are required to be given

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notice of any action affecting the trust or trust administration. If there is a last will and testament under litigation then, as you most likely have guessed, every single person named in the will gets notice, no matter what the provisions may be as to any such persons. Probate Code section 1206 provides that where notice is required to be given to known heirs or known devisees, notice shall be given to the heirs named in the petition for letters of administration and to any additional heirs who become known to the person giving the notice prior to the giving of the notice if the estate is intestate. There is a better way for you to look at the notice issue and that is simply this—if there is anyone who may take under a trust, a will or any other possible method under the estate, give that person notice. There are multiple sections of the Probate Code that can affect who should get notice as it relates to an estate. Save yourself the headache of not having your matter heard by making sure everyone is on notice. So sisters, brothers, aunts, uncles, cousins, children, stepchildren, chil-

dren you may think have been adopted and even children who may not have been born at the time. Yes, there is a section (Prob. Code § 249.5) that speaks to the issue of a child of a decedent conceived and born after the death of the decedent. The case Vernoff v. Astrue (2009) 568 F.3rd 1102, makes for very heady reading on the subject. However, one of the real advantages of probate litigation is the ability to recover attorneys’ fees from the estate. If your client is the trustee or personal representative, your attorneys’ fees can be reimbursable from the trust or estate so long as the fees were expended in a manner that benefitted the estate.

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The Probate World, continued from page 17 Nevertheless, this is not a Civil Code section 1717 situation. If you represent the beneficiary and you are bringing a lawsuit to enforce a trustee or fiduciary to obey the trust or estate document, you are not entitled to legal fees unless you are able to convince the court that Prob. Code section 17211(b) applies. The statute provides that “[i]f a beneficiary contests the trustee’s account and the court determines that the trustee’s opposition to the contest was without reasonable cause and in bad faith (not an insurmountable standard, but not an easy one either), the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount awarded shall be a charge against the compensation or other interest of the trustee in the trust” (emphasis and comment added). All in all, working in Probate Court as a litigator is a wonderful experience, not unlike Dorothy entering Oz—a lot of familiar faces, but in a completely different

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setting. So when practicing in probate, remember to be mindful of a whole new world of rules. s Geoffrey Steele is a partner at Steele, George, Schofield & McCormick, LLP. He is a civil litigator, with an emphasis on real property and financial elder abuse. 1

Prob. Code § 1021(a) (any petition, report, or account filed pursuant to the Probate Code or an objection or response to a petition, report or account must be verified). 2

With the proviso that where there is a report or account made by the person with the duty to make the report or account, that person must sign the verification with the understanding that if there is more than one person who has that obligation, then verification may be made by any of them. Prob. Code § 1021(b)(2); see also California Rules of Court, Rule 7.103(b). And, yes, there is an entire section of the California Rules of Court applicable to Probate matters (Title 7) with my favorite rule, California Rules of Court Rule 7.4: “[t]he court for good cause may waive the application of the rules in this title in an individual case.” 3

Prob. Code § 1023; see also California Rules of Court, Rule 7.103(c).


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Cross-examining a Forensic Expert by Roger M. Hughes

W

e have all been there—facing an opposing expert witness supported by graphs and computer analysis; opinions shrouded in mystery, veiled with glib rhetoric. How do you take on such a witness? The savvy litigator would do well to consider challenging the expert’s adherence to the “scientific method.”

What is the Scientific Method? The Oxford English Dictionary defines the scientific method as “a procedure that has characterized natural science since the 17th century, consisting in systematic observation, measurement and experiment, and the formulation, testing and modification of hypotheses.” Among the principles of the scientific method is the devising and testing of reasonable alternative hypotheses. Thinking in terms of the scientific method may help you confront and challenge an expert witness’s analysis in court litigation.

Challenging An Expert Based Upon Other Potential Rational Hypotheses A failed retaining wall is a problem, but how do we uncover the cause of the problem? We do so by looking for testable hypotheses that explain the problem and

the observable “anomalies” that may be associated with a problem. As we do so, it is important to keep working back from the manifestation to the trigger event. What makes a scientific investigation interesting and complex is that each step back may reveal “the cause” or just another link in the causation chain. In doing so, one must push back against the proclivity to jump to a desired conclusion. Resist stopping your search when you think you have a winner. Keep the dynamic nature of the scientific method in mind and force yourself to categorize and link even fringe facts, since they may broaden your understanding of the anomalies and other observations. Look for and identify each hypothesis that may be able to explain the observed anomalies and the ultimate problem at hand. The key is to not stop with the obvious. Intelligent conjecture will aid in a creative and potentially powerful cross-examination of an opposing expert.

Cross-Examination of Opposing Expert Based on a Failure to Test Other Rational Hypotheses

A common flaw in a forensic investigation is the rush of the expert to prove up a theory that supports or rebuts a particular theory of liability. A strong scientific investigation will L A W O F F I C E S O F attempt to systematically eliminate DAVIDÊA. ARIETTA rational alternative hypotheses unCertified Specialist, Bankruptcy Law til all reasonable challenges have California of C LegalE Specialization L State A Bar W of Specialist O F Board F I Bankruptcy S OLaw F Certified been answered. This is the heart of a Comprehensive Assistance of California Bankruptcy Board of Legal Specialization David A. Arietta State Bar properly conducted scientific invesfor Individuals and Businesses 20 years of experience Rated AV Preeminent Martindale-Hubbell tigation and fertile ground for crossCertified Specialist, Bankruptcy Law Bankruptcy Assistance 700 Ygnacio Valley Comprehensive Road examination. Consider the following (925) 472-8000 State Bar of California Board of Legal Specialization Suite150 and Businesses testimony: David @ AriettaLaw.com Walnut Creek, CA 94596for Individuals David A. Arietta Comprehensive Bankruptcy Assistance David A. Arietta 20 years of experience A. “I found that the cracks experifor Individuals and Businesses 20 years of experience 700 Ygnacio Valley Rd., Ste. 150 enced at the plaintiff’s home were Rated AV Preeminent Martindale-Hubbell L Rated A WAV Preeminent O F F Martindale-Hubbell I C E S O F Walnut Creek, CA 94596 caused by shallow soil creep.” (925) 472-8000 700 Ygnacio Valley Road (925) 472-8000 www.AriettaLaw.com david@ariettalaw.com Suite150 David @ AriettaLaw.com Walnut Creek, CA 94596

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Q. “Did you investigate the possibility that the damage was caused by a deep seated slide?” A. “I did not see any evidence that would lead to such a conclusion.” Q. “Did you investigate such a possibility?” A. “I considered it to be very unlikely and that such an investigation would be disproportionally expensive.” Q. “Therefore, you elected not to pursue the possibility that the cause of the damage was deep seated movement?” A. “Yes, some possible explanations are sufficiently unlikely as to not merit the time and cost of an expensive investigation.” Q. “So you chose the least expensive investigation that presented the least likelihood of liability to your client?”

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A. “Deep seated slides are very rare.” Q. “Do you contend that a hypothesis that the damage was caused by deep seated movement is irrational?” A. “No, unlikely, but not irrational.” Q. “So you chose to not investigate a rational hypothesis that if true would have supported my clients theory of the cause of damage to his home.” A. “Yes, because I considered it highly unlikely.”

The Legal Basis for Excluding Unsupported Expert Testimony In addition to undermining the expert’s analysis, highlighting the failure to rule out alternative hypotheses may give rise to grounds to exclude the expert’s testimony. In Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, the California Supreme Court echoed a series of decisions issued by the federal courts in

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Cross-examining, continued from page 23

the early 1990s and laid out a roadmap for practitioners to challenge expert testimony, admonishing trial judges to act as a “gatekeeper” for expert testimony. In fact, the California Supreme Court encouraged trial courts to examine the expert’s use of foundational materials to see whether the expert’s conclusions are logically supported by the materials used, and to preclude any expert’s testimony where it is speculative or otherwise improper.1 This includes an inquiry into not only the type of material on which an expert relies, but also the expert’s reasoning and whether the data actually supports the expert’s reasoning.2 If your cross-examination elicits testimony along the lines of the example above—an admission of a failure to disprove an alternative rational theory—the expert has arguably not met the foundational requirements and the expert’s opinion may be subject to exclusion. Under Evidence Code sections 801 and 802, a trial court may exclude expert opinion testimony that is: (1) based on matter of a type on which an expert may not reasonably rely, and (2) based on reasons unsupported by the material on which the expert relies, or speculative.3

The Sargon decision, combined with Section 803 of the California Evidence Code, provides a strong basis for a motion to strike an expert’s testimony where it can be shown that the expert failed to adhere to the basic principles of a scientifically valid investigation, including ruling out plausible alternative rational hypotheses. If you bear in mind this and other principles and processes of the scientific method, your examination of forensic experts, both on direct and on cross—and your motions to disqualify or strike—will be pointed and powerful. s Veteran California attorney Roger Hughes, a partner of Wendel, Rosen, Black & Dean, LLP, leads the firm’s Construction Practice Group. He is honored by a long history of recognition by his peers including having been AV® PreeminentTM rated by Martindale Hubbell since 1986. 1

Sargon, supra, 55 Cal.4th at 770-771.

2

Id. at 771.

3

Id. at 771-772; see also Cal. Evid. Code § 803, providing “[t]he court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on a matter that is not a proper basis for such an opinion.”

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Bringing a Police Excessive Force Case by Nick Casper

O

ne of the more interesting social developments over the last decade is the increased dialogue concerning police excessive force. From Oscar Grant to Michael Brown, from Freddie Gray to the Black Lives Matter movement, it seems that nearly every week another case of alleged police abuse saturates the airwaves. While one factor leading to the seeming increase in high-profile police abuse cases could be the expanded militarization of local police forces, the more immediate causes are likely the advent of the social media age and the proliferation of cellphone cameras. Put simply, more interactions between citizens and police are being captured, and when police use allegedly heavyhanded tactics, incidents can go viral overnight. Notwithstanding the change in

political climate, cases arising from alleged police misconduct—often termed “civil rights cases” because they are typically brought under Section 1983 of Title 42 of the United States Code for violations of constitutional rights—are some of the more difficult cases to handle. Plaintiff’s attorneys must navigate a veritable minefield before arriving at a favorable settlement or verdict. This article will explore some of the basic preliminary steps in handling such cases.

Initial Investigation and Claim Preservation After retaining the client—either the individual whose rights were allegedly violated, or the next-ofkin in cases of wrongful death—and conducting a thorough intake interview, the first step is to investigate the claim as completely as possible.

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It is prudent to send letters to the responsible entity informing them of your representation and requesting preservation of all evidence relating to the incident. The letter serves the important function of informing the entity that your client is a represented party and that all communication to the client must be addressed to you. In terms of preservation, it is arguable that entities such as police departments have a duty to preserve evidence immediately upon a use of force: The duty to preserve in federal and state courts is triggered when litigation is reasonably anticipated or foreseeable. However, best practices are to explicitly request preservation in writing in case, among other reasons, there is a subsequent spoliation issue. One should also make a public records request for all evidence relating to the incident to the responsible entity, including police reports, photographs, surveillance videos, officer body camera footage, cruiser video footage, witness interviews (both written and recorded statements), internal affairs reports and all other potential evidence. Often times, police reports can take months to be completed, and many entities refuse disclosure under the law enforcement investigatory privilege, so do not be surprised if the records request does not yield much, if anything, initially.

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25


The government claim is only necessary to preserve state claims that may eventually be brought, but it is advisable to preserve these claims, even if the suit may eventually be filed in federal court. Many entities have their own claim form, but the law only requires that a claimant submit, in writing, all the information mandated under California Government Code section 910 (time, place, circumstances of the incident, etc.). Be aware that Section 910 prohibits stating a dollar figure if it is in excess of $10,000, so typically this field is completed by stating that the claim is in excess of the limited court jurisdiction amount. Upon presentation of the claim, the entity has 45 days to respond in writing by either accepting or rejecting the claim. If the claim is rejected (the most common outcome), or if the entity does not act within 45 days, you may file your lawsuit.

Legal Framework for Filing Suit Excessive Force Case, continued from page 25

If any media outlets reported the incident, gather any and all available articles and videos. Sometimes these sources reveal eyewitnesses. Retain an investigator early in the case to photograph the scene and to interview any witnesses with knowledge of the incident. For crucial witness statements, it may also be wise to have the investigator obtain signed declarations. Be aware that any witness statements may be subsequently obtained by the defense, as recent cases have held that such statements are factual in nature and are not protected by the attorney work product doctrine. Once the initial investigation is complete and the case against the responsible party appears viable, one must be mindful of the California Government Tort Claims Act, which requires a claim to be presented within six months of the injury before filing suit.

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Cases involving police abuse are typically brought under Section 1983 (42 U.S.C. § 1983) for the violation of your client’s federal constitutional rights. In 1976, Congress passed an amendment to Section 1983 allowing for the recovery of attorneys’ fees by a prevailing Section 1983 plaintiff, a critical change that made cases involving constitutional deprivations economically feasible that would otherwise not be. While you can file the suit in state court since they are courts of general jurisdiction, it is often preferable to file in federal court, assuming the case meets the other subject matter jurisdiction requirement of having an amount in controversy in excess of $75,000. Although the pleadings requirements in federal court are a bit more stringent, federal court has broader discovery standards. State privileges for withholding evidence, such as internal affairs reports, are often determined inapplicable in the federal setting, thus there are fewer fights over obtaining relevant evidence. To withstand a motion to dismiss under the Federal Rules of Civil Procedure (FRCP 12(b)(6)), the lawsuit should set forth all the factual allegations relating to the


incident. If certain facts are reasonably inferred, but not yet supported by evidence, they may be alleged upon information and belief. The suit should then delineate all the causes of action. Most allegations of excessive force are brought under Section 1983 for violation of the client’s Fourth Amendment rights (the right to be free of unreasonable search and seizure). This cause of action must be alleged against the responsible individual state actors and cannot be brought against the entity directly. If you have reason to believe that the incident was also the product of improper policies, procedures, training or supervision, you may also want to include a claim against the entity under Section 1983 pursuant to Monell v. Department of Social Services (1978) 436 U.S. 658. Without this cause of action, you may be precluded from conducting certain discovery, such as into officer personnel files, since this evidence would otherwise be irrelevant. Assuming a government claim was timely filed, you should also include causes of action under California law, such as for assault, battery, false imprisonment or California Civil Code section 52.1, otherwise known as the Bane Act (a California analogue to Section 1983 that can be maintained when there is a constitutional deprivation by a state actor through threats, intimidation or coercion). Once the lawsuit is filed, the real work begins; litigation and trial strategies for Section 1983 cases exceed the scope of this article. It bears mentioning that there are no “slam dunk” civil rights cases; even in the more egregious cases of abuse, they are defended vigorously and often involve a motion for summary judgment. Yet like any civil case, it is critical to handle the preliminary steps flawlessly to maximize your client’s chances of success. s

30 years experience Probate-Trust Paralegal 3445 Golden Gate Way Lafayette, CA 94549 (925) 283-6998

As an associate with Casper, Meadows, Schwartz & Cook since 2007, Nick Casper represents injured individuals in cases involving catastrophic injury, wrongful death, medical malpractice, employment discrimination/harassment and civil rights violations. Nick has been lead counsel in five civil jury trials. He was the 2015 Board President of the Contra Costa County Bar Association.

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Notice to All Litigators Regarding Demurrers Effective January 1, 2016, CCP 472 (a) has been revised and CCP 430.41 has been added. Parties may no longer amend their complaint once as a matter of right until the day of the hearing on the demurrer. Such amendments must now generally be filed on or before the due date for the opposition. CCP 472 (a). Also, parties must now meet and confer in person or by telephone before filing a demurrer, and must file a declaration showing compliance. CCP 430.41. Be sure to review the new and amended code sections to get all the details.

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PAGA Amendments: Limited Right to Avoid Civil Penalties for Wage Statement Defects by Margaret J. Grover

T

he Private Attorney General Act, California Labor Code sections 2698 through 2699.5 (PAGA), was enacted in 2004, giving employees the right to recover civil penalties associated with specific violations of the California Labor Code. Until PAGA’s enactment, only the California Labor and Workforce Development Agency (LDWA) had the ability to recover civil penalties and any recovery was paid to the state. PAGA was enacted to supplement enforcement actions by the LDWA and allows private actions on behalf of all aggrieved employees and former employees. Penalties recovered in private actions are shared, with 25 percent awarded to the aggrieved employees and the balance paid to the state. Any settlement of a PAGA claim requires court approval.

ments.1 PAGA claims may proceed even after the court has declined to certify a class. The ability to obtain relief for a class, coupled with the requirement for judicial approval of any settlement releasing PAGA claims, has increased the burden on the courts. In 2015, the Legislature took steps intended to slow some of the PAGA litigation. Many PAGA claims assert violations of California Labor Code Section 226, which requires the employer to provide specific information on each pay stub, including: gross and net wages earned; total hours worked by the employee; rate of pay; deductions; inclusive dates of the pay period; employee’s name and identification number; and, the employer’s name and address.

Employers now have a limited ability to avoid litigaBefore bringing PAGA claims, the aggrieved employee tion by curing two types of alleged violations: (1) that must provide written notice of the alleged violations to both the employer and the LDWA. The LDWA Youngman Ericsson Scott, LLP has 17 days to review the notice 1981 North Broadway • Suite 300 and any remedial actions taken by Walnut Creek, CA 94596 the employer. If the LDWA does not act within the 17 day window, the employee may proceed with a civil action. Because a PAGA plaintiff is suing as the proxy of the LDWA, he or she may recover penalties on behalf of all aggrieved employees and former employees without meeting class certification require-

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the wage statements did not include the inclusive dates of the pay period(s); or (2) that the employer did not provide the name and address of the legal entity that is the employer. To avoid liability under PAGA, the employer must abate the defects and must provide a fully compliant, itemized wage statement to each aggrieved employee for each pay period within the three-year period immediately prior to the notice. These steps must be taken within 33 days of the notice. Employers may

take advantage of this safe harbor only once in each 12-month period. Any employer who receives a letter claiming violations of any provision of the California Labor Code should immediately seek out competent employment counsel to determine whether any or all of the alleged violations can be corrected to avoid or diminish liability for penalties. Even if the employer cures and avoids penalties, the employer may still face a class action for damages under Labor Code Section 226. s

Maggie Grover is an employment lawyer with the Oakland firm of Wendel, Rosen, Black & Dean, LLP. In her over 30 years of practice, she has represented employers and employees and served as a mediator, discovery referee and discovery facilitator. She is on the board for both the ADR and Employment Law sections of the Contra Costa County Bar Association. 1

Arias v. Superior Court (Angelo Dairy) 46 Cal. 4th 969, 986 (2009).

LRIS Success Story Richard MacBride, a Richmond area attorney for 18 years and a member of the CCCBA, recently settled a sizeable personal injury case referred to him through the Lawyer Referral & Information Service. The CCCBA congratulates Richard on his success. Another reason to join the LRIS today!

We are seeking attorneys in all areas including: • Spanish-speaking attorneys for all areas of law. • Housing law attorneys: evictions, tenant, landlord. • West County attorneys: especially family law, housing. • East County attorneys. • Moderate Means attorneys: • Housing (new program) • Elder law • Family law • Immigration law

Contact Barbara Arsedo, LRIS Coordinator, at (925) 370-2544.

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inns of court

Legal Demeanor/ Interpreters by Matthew Talbot

O

n November 12, 2015, the Robert G. McGrath American Inn of Court had their last meeting of the 2015 calendar year. Judge Ed Weil’s group starred Delia Esperanzu, Amy Foscalina, Mukesh Advani, Eliza Jasinska, David Simon, Michael Beuselinck, Julia Hunting, Steven Derby and retired Commissioner Don Green. Their presentation was on legal demeanor and basic congeniality, especially for newer attorneys. In the first vignette, Julia Hunting played the attorney character Be Cool. She was the boss to Eliza Jasinska’s associate Nervous Newbie. They represented Humpty Dumpty, who was suing Stonewall Construction for negligent construction. Here, Be Cool asked Nervous Newbie to cover a hearing on short notice. This caused Nervous Newbie to, you guessed it, become extremely nervous. At the court hearing, with Comm. Don Green as the judge, Nervous Newbie failed to even accurately name her client.

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The group discussed how an attorney can best prepare for these types of situations. Just between you (the public readership of this magazine) and me, at my first ever hearing about a decade ago, I failed to name my client, so I know how that feels!

vocacy requires answering a judge’s questions.

In the next skit, Humpty Dumpty was divorcing his wife, Yumpty Dumpty. Michael Beuselinck was the attorney representing Ms. Dumpty. Humpty was requesting increased spousal support, given his current financial difficulties.

Stonewall was seeking production of Humpty’s first grade report card. Stonewall’s attorney was trying to argue that Dumpty’s head was scrambled well before the fall and that the report card proved this.

However, he apparently lived with his girlfriend, which could decrease his spousal support. Here, Nervous Newbie failed to respond to the judge’s direct questions to assist her client in the hearing. The takeaway was that effective oral ad-

In the next skit, Michael Beuselinck, who also had been hired as attorney for Stonewall Construction, was arguing with Nervous Newbie over discovery.

However, Nervous Newbie kept interrupting the judge and arguing with the defense attorney. The Inns group discussed the importance of respectful discussion in any court proceeding. My experience is that judges generally have a dim view of interruptions.

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This Inns group showcased how not to act in front of judges. They had the interrupting skit as noted above and another where Amy Foscalina played a self-represented plaintiff and David Simon was an attorney representing the defendant. The plaintiff kept referring to the judge as “Your Majesty.” Alternatively, she would curtsy to the judge. Defense counsel made rude comments directly to plaintiff regarding her lack of knowledge about the law. Whether you are being extremely rude or extremely obsequious, judges do not really need either and will often require all communications be directed towards them. What other bad things could one do in front of a judge? Violate a judge’s orders on motions in limine, of course! In the Humpty Dumpty

v. Stonewall Construction trial, the judge issued a motion in limine precluding Stonewall’s attorneys from discussing Humpty’s early 90s theft conviction. However, the Stonewall CEO really wanted his attorneys to inform the jury about the conviction. Therefore, in closing argument, Stonewall’s attorney stated that Stonewall and its CEO “are not convicted thieves” to not so subtly compare them to any other parties to the matter who might be convicted thieves. The Inns group had a discussion regarding whether this was ethical. The closing may not have violated the letter of the motion in limine order, but fundamentally breached the spirit of the order.

Next, we were on appeal. Here, the Inns group focused on two situations for advocacy in an appeal: What to do if contrary case authority is published shortly before your oral argument, and how to respectfully raise the issue of trial judge bias against your client. In the first instance, David Simon was an attorney trying to argue in light of an indistinguishable Supreme Court decision issued on the eve of oral argument. He just stammered and made very general and useless comments about the circumstances. In the second instance, the appellate attorney made very personal, ad hominem attacks against the trial judge. In both of these instances, the Inns group highlighted what

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Inns of Court, continued from page 31

not to do, then focused on what to do instead. For the first instance, the best practice may be to argue any distinguishing fact, law or public policy. For the second instance, it is important to avoid ad hominem attacks and diplomatically point out differences between the trial judge’s rulings and the law. On January 14, 2016, the Inns of Court held its first meeting of the 2016 year. Commissioner Lowell Richards’ group (starring Patricia Kelly, Bonnie Johnson, David Ginn, Robin Thornton, Wally Hesseltine, Harpreet Sandhu, Tom Matteson, Jennifer Sommer and Aaron Langberg) put on a presentation regarding the law surrounding interpreters. This presentation started off with a translation challenge from Eng-

Elder Law is

lish to English, by playing movies with legal language and having the audience try to speak along word for word. Even just repeating the very words we were hearing on the screen proved extremely difficult, let alone trying to keep track and translate those words into another language. Needless to say, I was pathetic at this particular exercise. We found it easier if the speakers in the videos used shorter words and spoke slowly. In their presentation, the group used skits to elucidate their points on interpreting. For example, in one skit, David Ginn played an Eastern European man being deposed. Pat Kelly was the interpreter with Jennifer Sommer asking the questions. David Ginn would speak for 30 seconds, but Pat Kelly’s interpreted answers would be monosyllabic. The interpreter cannot provide their own analysis of the answer and

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall. Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, approximately one in ten families has a relative with this disease. Of the four million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

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Alzheimer’s Planning 32

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925.256.0298 www.YoungElderLaw.com 1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

have to provide the clearest interpretation of the answer without any opinion or analysis. In another skit, the interpreter was clearly doing a bad job of interpreting. We learned that you can actively object to an interpreter and can request supplemental information on their qualifications. You can make a record of their incompetence, which is a sentence that I hope is never applied to me. Pat Kelly also spoke regarding fatigue for interpreters. As noted previously, interpreting is hard. Generally, interpreters go about 30 minutes without taking a break. This can create strains on the court system, especially in the criminal system. Co-defendants are entitled to have their own interpreter. In cases where there are multiple co-defendants, you have to have multiple interpreters who all get their own opportunities to break for fatigue. Next, Harpreet Sandhu spoke regarding ways that speakers can assist the interpreter. They can speak slowly and loudly, allow time to interpret and can wait for the interpreter to finish before moving on. What is interesting is that the interpreter cannot clean up the language and has to interpret to the closest language the speaker is using, even if they use foul language. They showed a movie where Danny DeVito was being grilled at a congressional hearing. He was using the sort of foul language you might see on the Fox Network during one of “In Living Color’s” more ribald sketches, and the sign language interpreter had to use the exact same foul language in hand signals. Commissioner Richards is apparently a large fan of didactic movies, because the group included a clip from “I Love Lucy” about relay interpreters. Relay interpretation is a situation where you do not have, for example, an English to Spanish


interpreter. However, if you have English to French and French to Spanish, you might be able to hold a reasonable conversation. In the clip, there was a French to German, German to Spanish and Spanish to English interpreter allowing a French policeman to interrogate Lucille Ball. It does not appear that relay interpreters are used in the court system, although sometimes it could be helpful to have an in pro per to English, and English to legalese relay interpretation plan. These two Inns of Court events were great ways to finish off one year and start another. The next meeting is scheduled for April 14, 2016, which is perfect if you want to procrastinate on your taxes.

If you are interested in applying for RGMAIOC membership, please contact Patricia Kelly at patriciakelly@ pacbell.net. s Matthew B. Talbot, Esq., is an elder law attorney in Walnut Creek. His practice specializes in estate planning, trust/probate administration, trust/probate litigation, conservatorships, guardianships, elder abuse and Medi-Cal matters. Matthew is on the Executive Board of the Inns of Court. You can reach him at matthew@matthewbtalbot.com or (925) 322-1763.

What You Missed in February’s Online Issue Technology/Social Media Edition Features: • IT Security of the Law Office - David Jordan • Surprising Traps of Social Media in the Workplace - James Y. Wu • Telephonic Appearances and Your Practice - Konstantine Demiris • Smartphones and the Police: Riley v. California - Owen Rooney • Effective Uses of Social Media in Family Law - Suzanne Boucher • Getting the Most from Your Online Legal Advertising - Ken Matejka

Columns: • Inside Guest Editor’s Column - David Pearson • President’s Message: Health, Happiness and ... Technology? - Elva Harding • Bar Soap: February 2016 - Matt Guichard • Ethics Corner: Ethics and Your Online Presence - Carol M. Langford

News & Updates: • CCCBA Holiday Party [photos]

ticles, r a r e h and ot o: e s e h t t To read go online lawyer.org costa a r t n o www.c

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CALENDAR UPCOMING EVENTS | OVERVIEW

March 9 | Family Law Section

Families in Transition: Litigating Divorce & Custody Matters Involving a Transgender Spouse, Parent or Child more details on page 36 March 10 | Estate Planning & Probate Section

Mentoring Group Meeting more details on page 36 March 10 | CCCBA

Celebrate and Honor the Life of the Honorable Richard E. Arnason more details on page 34 April 7 | Appellate Section

How Trial Lawyers Can Help Appellate Lawyers Win more details on page 36 April 13 | Family Law Section

Nooks and Crannies: Electronic Discovery and Family Law Disclosure in 2016

April 14 | Estate Planning & Probate Section

Mentoring Group Meeting more details on page 36 April 18-29 | Food From the Bar

25th Annual Food From the Bar Drive more details on page 36 April 21 | Res Ipsa Jokuitor XXI

Comedy Night & Kickoff for Food From the Bar 2016 more details on page 20 April 26 | Estate Planning & Probate Section

23rd Annual Estate Planning Symposium more details on page 37 May 12 | Women’s Section

Annual Wine Tasting and Silent Auction more details on page 37

more details on page 36

For up-to-date information on programs, please visit www.cccba.org/attorney/calendar and/or subscribe to our weekly “Events & News” email. To subscribe, text CCCBA to 22828.

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March 9 | Family Law Section

Families in Transition: Litigating Divorce & Custody Matters Involving a Transgender Spouse, Parent or Child The session will cover an overview of terms and standards of care as well as strategies for litigating these matters from the pre-filing through the hearing. Speaker: Colby Freeman, Esq. Time: 12 pm – 1:15 pm Location: Contra Costa Country Club, 801 Golf Club Rd., Pleasant Hill MCLE: 1 hour elimination of bias MCLE credit Cost: $50 for section members and law student members, $75 for CCCBA members, $100 for non-members Registration: Please send payment to FLS, PO Box 5818, Concord, CA 94524 More Info: Contact Therese Bruce at (925) 930-6789 or fls.cccba@gmail.com

April 13 | Family Law Section

Nooks and Crannies: Electronic Discovery and Family Law Disclosure in 2016 Speaker: David M. Lederman, Certified Family Law Specialist, Technology Director for the Association of Certified Family Law Specialists, Technology Chair for the CCCBA Family Law Section Time: 12 pm – 1:30 pm Location: Contra Costa Country Club, 801 Golf Club Rd., Pleasant Hill MCLE: 1 hour family law specialization MCLE credit (Division of Community Property) Cost: $50 for section members and law student members, $75 for CCCBA members, $100 for non-members Meal Choices: Apple and Romaine Salad with Prawns, Chicken Picatta or Roast Sirloin Registration: Please send payment to FLS, PO Box 5818, Concord, CA 94524 More Info: Contact Therese Bruce at (925) 930-6789 or fls.cccba@gmail.com 36

MARCH 2016

March 10 | Estate Planning & Probate Section

Mentoring Group Meeting On the second Thursday of every month, the section will hold its monthly mentoring group open-discussion meetings where those new to the estates and trusts practice area, or those interested in making the switch to this area, can pose questions and engage in lively discussion with several experienced practitioners from the section. Each month we will focus primarily on one or more announced topics, with freedom to roam into related topics if there is sufficient interest. March’s topic: TBD. Please bring your brown bag lunch. Time: 12 pm – 1:15 pm Location: CCC District Attorney’s Office Community Room, 900 Ward St., Martinez Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

April 14 | Estate Planning & Probate Section

Mentoring Group Meeting On the second Thursday of every month, the section will hold its monthly mentoring group open-discussion meetings where those new to the estates and trusts practice area, or those interested in making the switch to this area, can pose questions and engage in lively discussion with several experienced practitioners from the section. Each month we will focus primarily on one or more announced topics, with freedom to roam into related topics if there is sufficient interest. April’s topic: TBD. Please bring your brown bag lunch. Time: 12 pm – 1:15 pm Location: CCC District Attorney’s Office Community Room, 900 Ward St., Martinez Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

April 7 | Appellate Section

How Trial Lawyers Can Help Appellate Lawyers Win This event will focus on how trial lawyers can create a record that sets up an appeal. Learn how to help appellate counsel protect your wins—and how to help them get your losses reversed. Lunch will be provided. Speakers: Justice William Stein (Ret.), First District Court of Appeal Myron Moskovitz, Esq. Time: 12 pm – 2 pm Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Rd., Concord MCLE: 1.5 hours appellate law specialization MCLE credit (pending approval) Cost: $25 for section members, $10 for law student members, $30 for CCCBA members, $40 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

April 18-29 | Food From the Bar

25th Annual Food From the Bar Drive Make a difference to the hungry people in Contra Costa County (and show those other law firms how generous your firm really is)! This year marks the 25th Annual Food From the Bar drive benefitting the Food Bank of Contra Costa and Solano. You can donate money and/or non-perishable food items. You can feed a child for $10 a week, or for $135 you can feed a child for the entire three months of the summer when they do not receive school lunches. So $100,000 can feed 740 children all summer. This is our goal! All monetary donations are tax-deductible and will be acknowledged. The firm with the highest per capita figures in each category will receive an individual award for permanent display in their office. Do your part to feed the hungry in your area. Participate in Food From the Bar! To donate or for more info, go to http://fftbcc.causevox.com/.


23rd Annual Estate Planning Symposium Co-sponsored by Wealth Management at Mechanics Bank Registration: 12:30 pm - 1:30 pm Program: 1:30 pm - 4:30 pm Reception catered by Scott’s Seafood to follow program (4:30 pm - 5:45 pm). Speakers: James P. Lamping, Esq. “Revitalizing a Stale Trust” Ingrid Evans, Esq. “Elder Financial Abuse” Location: Lesher Center for the Arts, 1601 Civic Drive, Walnut Creek MCLE: 1.25 hours estate planning specialization, 1.25 legal ethics MCLE credit Cost: $75 for section members, $50 for Barristers and law students members, $90 for CCCBA members, $95 for non-members

May 12 | Women’s Section

Annual Wine Tasting and Silent Auction Please join the Women’s Section of the CCCBA at our Annual Wine Tasting and Silent Auction. Proceeds from this event will benefit the Hon. Patricia Herron and the Hon. Ellen James Scholarship Fund. If you would like to sponsor this event, please contact Mika Domingo at mikadomingoesq@gmail.com. Time: 5:30 pm – 7:30 pm Location: Contra Costa Country Club 801 Golf Club Road, Pleasant Hill Cost: $50 for section members and judges, $55 for CCCBA members, $60 for nonmembers Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

Registration: Online at www.cccba.org/attorney/calendar

CALENDAR

April 26 | Estate Planning & Probate Section

Advertise in the Member Directory Reserve your spot by June 5, 2016

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Professional listings in the Services, Experts or ADR Directories are $175. With the purchase of a display ad, you receive one free listing. Additional lines are $50 each. Additional categories are $75 each.

For more information, contact Dawnell Blaylock, Communications Coordinator, at (925) 370-2542 or dblaylock@cccba.org.

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Profile for CCCBA - Contra Costa Lawyer

Contra Costa Lawyer, March 2016  

Litigation Edition

Contra Costa Lawyer, March 2016  

Litigation Edition

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