Contra Costa Lawyer September 2014

Page 1

Contra Costa

LAWYER Volume 27, Number 5 | September 2014

Employment Law

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Contra Costa  2014 BOARD OF DIRECTORS Stephen Steinberg President Nicholas Casper President-Elect Candice Stoddard Secretary Elva Harding Treasurer Jay Chafetz Ex Officio Philip Andersen Dean Barbieri Amanda Bevins Oliver Bray Denae Hildebrand Budde Mary Carey

Michelle Ferber Peter Hass Reneé Livingston Katherine Wenger James Wu

LAWYER Volume 27 Number 5 | September 2014

The official publication of the

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



by Ralph L. Jacobson and Yen P. Chau

CCCBA   EXECUTIVE   DIRECTOR Theresa Hurley | 925.370.2548 |


CCCBA main office 925.686.6900 |


by Patricia M. Kelly

Barbara Arsedo Emily Day

LRIS Coordinator Systems Administrator and Fee Arbitration Coordinator


Dawnell Blaylock

Communications Elizabeth Galliett Coordinator Education and Programs Coordinator

Jennifer Comages

Membership Coordinator





by Margaret J. Grover

Harvey Sohnen Suzanne Boucher 925.258.9300 925.933.1500

Nicole Mills Matthew Guichard

925.351.3171 925.459.8440 Harding BOARD LIAISON Elva 925.215.4577 Candice Stoddard 925.942.5100 Patricia Kelly 925.258.9300 COURT LIAISON David Pearson Stephen Nash 925.287.0051 925.957.5600 Samantha Sepehr PRINTING 925.287.3540 Steven’s Printing Marlene Weinstein 925.681.1774 925.942.5100 PHOTOGRAPHER James Wu Moya Fotografx 925.658.0300 510.847.8523






by Kevin R. Allen, Esq.

by Marjorie Wallace

DEPARTMENTS The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 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 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.

Cover Photo: Canal construction in Concord, c. 1940. Used with permission from the Contra Costa County Historical Society.


INSIDE | by James Y. Wu

20 CENTER | All Sections’ Summer Mixer [photos] Lisa Reep’s Retirement Reception Invitation MCLE Spectacular Invitation 27



PRO BONO SPOTLIGHT | by Samantha Sepehr









It’s About People James Y. Wu


elcome to the September 2014 edition of the Contra Costa Lawyer! It is truly about people.

First, I’d like to take this opportunity to give a heartfelt THANK YOU to Lisa Reep, who will be retiring this month as Executive Director. Lisa has dedicated years to the Contra Costa County Bar Association. Her leadership, professionalism, and friendly and vibrant personality have propelled the CCCBA to one of the nation’s leading bar associations. On a personal note, I have been fortunate to work with Lisa for several years and count her as a wonderful friend and colleague. Please join us on September 19 at the Lafayette Park Hotel to celebrate Lisa and her many contributions to CCCBA. Thankfully, the CCCBA will be in great hands after Lisa’s departure. Many of you already know that our very own Theresa Hurley will become the next Executive Director. Theresa has already devoted several years to the CCCBA, and I have no doubt that she will give her all to the new role and help the CCCBA thrive and flourish for years to come. This month’s magazine focuses on Employment Law. The CCCBA is fortunate to have a very vibrant and collegial Employment Law Section that puts together MCLE events nearly every month and collaborates frequently. When the opportunity arose to host an edition of this magazine, the Employment Law Section jumped at the opportunity, and we are all the beneficiaries of the following excellent articles: In June 2014, the California Supreme Court decided an important case regarding the impact of immigration



status in California employment law cases. Ralph L. Jacobson and Yen P. Chau provide an excellent review of Salas v. Sierra Chemical Co. and have not only focused on its impact on employment law, but also the potential ramifications the decision has on personal injury cases. All attorneys should read this article even if their practice does not focus on immigration, personal injury or employment law. Patricia M. Kelly also presents excellent insight into another recent development in employment law. Her article focuses on the new wage and hour requirements regarding live-in personal care attendants. Pat’s article highlights many traps for the unwary employer. Often, a plaintiff in an employment law claim will have suffered significant and quantifiable economic damages, including back pay, front pay, loss of employee benefits and other measurable damages. Douglas Kelly dives into the situation where “emotional distress” damages overshadow any economic damages. Doug analyzes issues for litigating and defending cases when a plaintiff may have significant emotional distress damages, but little economic damages. Margaret J. Grover offers us insight into mediating employment law claims. Her article focuses on how attorneys and litigants can make the mediation joint session a productive and helpful part of mediation. Sometimes, employment law matters might actually make it all the way to a judgment. Great, you may have won your case, but now what? Thankfully, Kevin R. Allen supplies us with key practical tips for applying for prevailing party fee awards in employment law cases. Not only did Marjorie Wallace research and write

a great article, but she spent hours watching documentaries in order to provide us with a look at employment law in the movies. She focused on two important documentaries: Robert Reich’s “Inequality for All” and “Anita: Speaking Truth to Power.” So, pause your viewing of comedies making light of workplace issues (like “The Internship” or “Horrible Bosses”), and learn about these two documentaries summarized by Marjorie. Finally, we are fortunate to have an article by William Mero from the Contra Costa County Historical Society regarding a violent labor strike that occurred in Contra Costa County in the late 1930s. While the precise issues may have evolved over the years, the upheaval and conflict regarding the C&H Sugar refinery in Crockett serves as a great reminder that employment law is truly focused on people and the lives of workers and business owners alike.


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I would like to personally thank the authors of the articles for volunteering their time and energy. In addition, I thank Kevin R. Allen for his behind-the-scenes help, and thank the other members of the Employment Law Section Board for supplying authors, articles and year-round benefits to our legal community. I also thank the Contra Costa County Historical Society for providing the wonderful cover to this month’s edition. s For nearly two decades, James Y. Wu has provided employment law advice and counsel, and litigation representation, to employers of all sizes. After 15 years at some of the nation’s leading firms, James founded his own firm in Walnut Creek. James is a member of the CCCBA Board of Directors, Co-Chair of the Law Practice Management Series Task Force, and former President of the CCCBA Employment Law Section. Learn more at www. and http://www. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER


Admissibility of a Plaintiff’s Immigration Status in California Employment and Personal Injury Cases by Ralph L. Jacobson and Yen P. Chau


n California employment and personal injury litigation, the question often arises as to whether a plaintiff’s immigration status constitutes admissible evidence; and whether (or when) illegal immigration status might bar part or all of a claim for damages. Case law on this issue has developed, over the years, in both the employment and personal injury arenas: Pronouncements of the law in each field have impacted the other.

But there has long been an exception to the inadmissibility of such evidence: If the personal injury plaintiff sought recovery for future wage loss, the holding in Rodriguez calls for the trial court, in an in limine hearing prior to the jury trial, to determine whether the plaintiff was “subject to deportation.” Or, alternatively, whether the plaintiff had undertaken steps to cure the problem, such that he or she would be able to achieve compliance with the law during the relevant future time period.

The latest significant development is the California Supreme Court’s decision in an employment law case, Salas v. Sierra Chemical Co., (2014) Cal. App.4th, 173 Cal. Rptr.3d 689.

Rodriguez held that the illegal status of the plaintiff (if such was found in the hearing by the trial court) would indeed be admissible evidence on the issue of future wage loss:

The background of this issue goes back at least to the 1980s, with Rodriguez v. Kline (1986) 186 Cal.App.3d 1145, 1148, describing the “question regarding a plaintiff’s citizenship or lawful place of residence as one of law, to be decided exclusively by the trial court outside the presence of the jury.”

“If the court’s decision following this hearing is in the plaintiff’s favor, then all evidence relating to his alienage shall be excluded and his projected earning capacity may be computed upon the basis of his past and projected future income in the United States. Should the defendant prevail, then evidence of the plaintiff’s future earnings must be limited to those he could anticipate receiving in his country of lawful citizenship. Of course, in such an instance since the plaintiff’s status ordinarily would not be relevant to a determination of liability, he would be entitled to a limiting instruction to that effect.”2

Historically, a personal injury plaintiff’s immigration status has been inadmissible, for most purposes. See Hernandez v. Paicius (2003) 109 Cal.App.4th 452, disapproved on other grounds in People v. Freeman (2010) 47 Cal.4th 993, 1006, footnote 4. In Hernandez, a medical malpractice case, the defendant physician sought to introduce plaintiff’s alien status as character evidence to show a propensity to lie, and the court allowed the evidence before the jury. On review, the court held that plaintiff’s immigration status had no probative value regarding plaintiff’s veracity, and that it was highly prejudicial. So the appellate court held that the trial court had erred in allowing the evidence.1



A significant development in this area occurred in 2002, in an employment case: The United States Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). The Court in Hoffman reversed an award of back pay to illegal immigrants who, in violation of the National Labor Relations Act, were terminated because of their participation in the organization of a union.3

The precise question there was whether the NLRB had the authority to award back pay to undocumented workers, notwithstanding the prohibition on hiring such workers in the Immigration Reform and Control Act of 1986. The Supreme Court answered that question in the negative, relying on the policy goals of the immigration laws.4 The California Legislature responded to Hoffman, enacting four almost identical remedial statutes, effective in 2003: Civil Code Section 3339(a), Government Code Section 7285(a), Health & Safety Code Section 24000 and Labor Code section 1171.5(a) (hereafter, the “Remedial Statutes”). These code sections each included this sentence: “All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” The next year, the Ninth Circuit, in Rivera v. NIBCO, Inc. (9th Cir. 2004) 364 F.3d 1057, 1072-1073, looked at the issue once again in another employment law context: Whether Hoffman’s bar on recovery by undocumented workers applied to their receiving federal Title VII benefits as well as state law remedies under the Fair Employment and Housing Act (FEHA) (Govt. Code, § 12900, et seq.). Expressing doubts that benefits were so barred in light of the passage of the Remedial Statutes, the court denied the defendant’s request for discovery on plain-

tiffs’ immigration status, at least prior to determination of whether liability and damages would be bifurcated. Around the same time, a California appellate court commented about the Remedial Statutes: “[T]he Legislature apparently felt strongly enough about the sensitive subject of immigration status to put essentially identical language in three separate statutes enacted shortly after this case was tried.”5 Moreover, in Reyes v. Van Elk, Ltd. (2007) 148 Cal. App.4th 604, 615-618, another employment case, the appellate court permitted undocumented workers to recover damages for an employer’s failure to pay prevailing wages, citing the Remedial Statutes, particularly Labor Code Section 1171.5, as a basis for its decision. Finally, the issue of potential preemption of all, or part, of the Remedial Statutes by the federal Immigration Reform and Control Act of 1986 (8 U.S.C.A. § 1101 et seq.) came to the fore this year, and became the primary basis for the California Supreme Court’s decision in Salas.

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In Salas, a former employee brought an action against his former employer, alleging disability discrimination in violation of FEHA, and denial of employment in violation of public policy, after his employer failed to allow him to return to work after he suffered a back injury. The trial court granted the employer’s motion for summary judgment, and the appellate court affirmed, because the employee had knowingly presented a false social security num-



Immigration Status cont. from page 7 ber when hired; according to the appellate court, the after-acquired evidence of his illegal status was a complete defense to the employee’s claims. But the Supreme Court superseded the Court of Appeal decision, reconciling, via preemption analysis, the Remedial Statutes’ provision of all available remedies to undocumented workers with the federal prohibition against continuing to employ illegal immigrants. It concluded that federal preemption prevented the award of back pay to undocumented workers only after the employer discovers the illegal worker’s status. Federal law did not preempt payment of an employee’s wages in the period prior to discovery of his or her illegal status: “The remedial relief generally should compensate the employee

for loss of employment from the date of wrongful discharge or refusal to hire to the date on which the employer acquired information of the employee’s wrongdoing or ineligibility for employment.”6 So the upshot of Salas is that it maintains the right of employees, whose status is illegal, to bring FEHA actions and recover damages up until the date of the employer’s discovery of the employee’s illegal status; but it motivates an employer, facing a FEHA or wrongful termination claim, to ascertain early on any existing evidence of an employee claimant’s illegal immigration status, so that the employer can try to decrease the employee’s potential damages award. The Salas decision therefore “ups the ante” for both sides in FEHA and wrongful termination claims. Undocumented workers may be more incentivized now to seek redress for wrongful employment practices, notwithstanding their immigration

status, since they do have a right to recover damages up until the point their illegal status is ascertained by the employer; and employers will, earlier and more vigorously, attempt to ferret out evidence of an employee’s illegal immigration status, among other potential defenses, to decrease their exposure for damages. Were the issue of a third party’s potential liability for an injured plaintiff’s future wage loss to arise now in a personal injury context, after Salas, plaintiff’s counsel would still argue that the injured party’s potential recovery for future lost earnings is, quoting the Remedial Statutes, a “remedy available under state law.” Plaintiff’s counsel would also argue, raising technical arguments of statutory intention like those discussed by the Supreme Court in Salas, that there has been no federal preemption of the Remedial Statutes, as applied to future wage loss

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of a personal injury plaintiff. Defense counsel would argue that the Rodriguez rule still applies, and future earnings evidence should be limited to the plaintiff’s country of legal residency. Supportive of that contention would be that Hernandez cites with approval, in dicta, to Rodriguez’s distinction that immigration status is admissible when future wage loss is at issue.7 But more significantly, Salas will be seized upon by the defense; it will argue that Salas’ logical extension in the personal injury context should be that Rodriguez remains in force and effect, in spite of the passage of the Remedial Statutes: That is, while plaintiff’s past U.S.-based earnings might be subject to full recovery, his or her future earnings should be limited to those obtainable in his or her country of lawful citizenship—just as an employee’s future earnings, post-discovery of

illegal status, are now barred by Salas. With Salas, the dust has cleared in the employment law area; only time will tell whether that decision suggests a resolution of this issue in the personal injury context as well. s 1

Hernandez at pp. 455, 460-461.


186 Cal.App.3d at 1149.


Id. at 140–41.


Id. at 148–52.

Ralph L. Jacobson is a founding partner of, and now of counsel to, the law firm of Gillin, Jacobson, Ellis, Larsen & Lucey in Orinda. Yen P. Chau practices civil litigation with a focus on employment law at Greenan, Peffer, Sallander & Lally, LLP in San Ramon. She is a member of the Board of the Employment Section of the Contra Costa County Bar Association.


Hernandez, 109 Cal.App.4th at 459. Why the court failed to mention the fourth statute, Health & Safety Code Section 24000, is unclear.


Salas, 173 Cal. Rptr.3d at 706.


Hernandez, 109 Cal.App.4th at 459.

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Overtime Compensation Rights for Live-in Personal Care Attendants by Patricia M. Kelly


ith the country’s aging baby-boomer population, there has been an increase in the number of in-home personal care attendants. Legal protections of the wages, hours and working conditions have lagged with care workers remaining among the lowest paid in the service industry. On the other hand, as the costs of such services are usually borne by individuals and families, there are issues of affordability. This article addresses the California overtime laws applicable to live-in personal attendants.

compensation (pay at one and one-half times the hourly rate) for any hours worked over nine hours in a day and 45 hours in a week. The only exceptions to these overtime requirements are if the wages are paid through the In-Home Supportive Services program or other specified state or county programs, the person is a babysitter under 18 years of age or a “casual babysitter,” or if the person providing the services is the “parent, grandparent, spouse, sibling, child or legally adopted child of the domestic work employer.”4 To qualify as a “personal attendant,” the person may not perform any “significant amount” of work other than services related to the care and support of the individual. The phrase “no significant amount of work” means work other than the supervision, feeding or dressing cannot exceed 20 percent of the total weekly hours worked.5

A covered employer is someone “who directly or indirectly, or through an agent or any other person, including through the services of a third-party staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of a domestic work employee.”1 The laws cannot be evaded merely by calling someone an “independent contractor.” Prior to January 1, 2014, “personal attendants” were exempt from the overtime laws, although they were still subject to minimum wage requirements.2 However, on January 1, 2014, the California Domestic Worker Bill of Rights (California Labor Code sections 1450 through 1454) went into effect. This law regulates working hours of “personal attendants” who provide care and support for individuals. A “personal attendant” is anyone employed by a private householder or by a third-party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child, or a person who by reason of advanced age, physical disability or mental deficiency needs supervision.”3 Personal attendants are required to be paid overtime

Household work related to the care of the aged or infirm person, such as meal preparation, bed making, washing clothes and similar services should qualify as exempt work, while general household work must not exceed 20 percent of the total weekly hours worked.6 Where this 20 percent limitation is exceeded, more onerous overtime requirements apply.7 “Hours worked” are “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”8 Under federal law, up to eight hours of “sleep time” may be excluded from the calculation of hours worked,



Overtime Compensation cont. from page 11 if: (1) the work shift is 24 hours or more; (2) there are adequate facilities such that the employee may usually enjoy an uninterrupted period of sleep; (3) there are at least five uninterrupted hours available during the sleep period; and (4) there is an express or implied agreement that sleep time is excluded. If sleep time is interrupted by a call to duty, the time spent on duty is considered hours of work.9 Also, if the sleep period is interrupted to such an extent that the employee cannot get at least five hours of sleep, then the entire sleep period is considered working time. The doctrine of an exclusion of sleep time hours from compensable time worked has not been tested under California state law, but there are strong arguments as to why the laws should be the same.

Elder Law is

An employer who fails to pay the legally required wages can be held liable not only for the wages due, but also “waiting time” penalties, if the failure to pay is found to be willful. Waiting time penalties are calculated as a continuation of the daily wages from the due date at the same rate until paid or until an action is commenced, but for no more than 30 days.10 Additional penalties also could be awarded, such as $50 for each underpaid employee for each pay period, or a fine of not less than $100.11 An employer could also be held liable for interest and attorneys’ fees and costs incurred by an employee awarded overtime compensation in a court action.12 Records must be kept of hours worked, including when a shift starts and ends. Itemized records also should be kept and provided to the employee, showing what compensation has been paid, includ-

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ing any premium pay for overtime hours. It is advisable that there be a written contract with a personal attendant. It should address sleep time (that the worker is expected to be able to have eight hours of sleep time per night, that eight hours of sleep time will be deducted from the 24-hour shift of work, and that the worker should inform the employer when he or she has had to work during those sleep time hours). The contract should also have a specification of duties; define the relationship as at-will and state that the person will vacate the premises upon termination of employment. s 1

Cal. Lab. Code §1451(C)(1).


In the state of California, minimum wage currently is $9 per hour, with an overtime rate at time and a half of $13.50. There are cities where the minimum wage is higher, such as $10.74 in San Francisco. 3

Cal. Lab. Code §1451(d).


Cal. Lab. Code §1451(b)(2).


Cal. Lab. Code §1451(d).


Cal. Lab. Code §1451(d).


IWC Wage Order 15-2001, 3(B).


IWC Wage Order 15-2001, 2(H).


5 C.F.R. §551.432; 29 C.F.R. §§785.20785.23.


Cal. Lab. Code §203.


IWC Wage Order 15-2001 §15; Cal. Lab. Code §1199. 12

Cal. Lab. Code §1194.

Patricia Kelly is a partner at Sohnen & Kelly in Orinda, which has substantial experience addressing a broad range of employment issues, including wage and hour class action lawsuits, disciplinary actions, discrimination, harassment, wrongful termination and severance agreements. They represent primarily small companies and individuals.

Out to Sea Without An Anchor? Analyzing Emotional Distress Damages Without Corresponding Economic Damages by Douglas Kelly


ttorneys often value emotional distress in an employment law case using economic damages as an anchor. This makes sense: Economic damages are more easily calculated into numbers and data is more or less measurable. If there is no anchor of economic damages, attorneys can still evaluate cases that have no or minimal economic damages by appraising noneconomic damages fully.

(amygdala) roars into overdrive and overtakes the unemotional memory-finder and recorder of the brain (hippocampus).5 As stress hormones flood the body and raise blood pressure, short-term memory is disrupted— the brain focuses its attention on instant danger and not on cool, rational thinking.6 This activity can make the brain record incorrectly or not at all, making gaps in memory.7

First, the legal framework. The Fair Employment and Housing Act (FEHA) “permits individual suits for damages to enforce its provisions, but it does not specify what damages are recoverable.”1 Despite the statutory openness, emotional distress is a distinct form of compensatory relief.2

By all accounts, emotional distress is legally and physically tangible. When it legally exists, the challenge is evaluating how much an employer should pay for it. While every case is different, it is arguable attorneys within the employment law field default to specific factors. The following provides further guidance for assessing emotional distress damages.8

Courts go through an intensive review of evidence to evaluate emotional distress as “there is no fixed or absolute standard by which to compute the monetary value of emotional distress.”3 Every case is remarkably different, and thus an emotional distress case should be appraised and “decided on its own facts and circumstances.”4 Such a loose standard is an interesting contrast to the biology of stress. When an employee experiences trauma, such as a job termination or sexual harassment, the brain triggers an anthropological “fight-or-flight” response. The reactionary, emotional part of the brain

• Strong Testimony. The best way to assess emotional distress is, simply, to listen. If an employee genuinely feels distraught and can honestly express with specificity a significant “quality-of-life impact,” it puts emotional distress damages squarely on the table.9 Note that the “fight-or-flight” response detailed above may arise during an employee’s deposition or detailed interview. This may explain why some employees are not able to describe workplace events in full detail as they are forced to relive trauma that formed memory gaps.



Emotional Distress cont. from page 13 In this way, conducting a deposition like a police interrogation may elevate stress levels in an employee, hindering accurate, factual discovery. The value of testimony is also impacted by whether the employee is a likeable person. An employee should evoke sympathy in the jury, a given, but equally important invoke sympathy from the employer. An employer may refuse to pay for emotional distress in settlement if there’s a history of animosity that pervades beyond the case. This is a political concern, yet nonetheless, can affect a case. • Professional Diagnosis of Injury. If a medical professional can diagnose a specific condition and tie it to the alleged illegal workplace conduct in the workplace, it provides strong


evidence of emotional distress.10 Unfortunately, such a clear diagnosis is fairly rare and subject to challenge by an employer’s medical expert if the case is in litigation. Further, a client may not be in a position, emotionally or economically, to see a health professional. Thus, while a powerful piece of evidence, it may not be available in every case. • Nature of the Claim. To many attorneys, harassment claims lend themselves more to emotional distress than, say, wrongful termination claims.11 Behavioral economists disagree. Many studies have shown “job loss causes substantially more [emotional] harm than the undisputed economic losses it generates” affecting employees, potentially, for years.12 Discrimination intensifies the emotional distress caused by this job loss.13 Thus, attorneys on both sides should take the time to better eval-


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uate emotional distress in termination cases and not outright dismiss them, especially constructive termination claims as “individuals who blame others for their health conditions tend to have worse symptoms and recover more slowly.”14 • Severity. Extreme and outrageous conduct will likely dictate higher numbers. However, severity should only be a factor if emotional distress is viable in a case. The California Court of Appeal recently held that proving “elements of the tort of intentional infliction of emotional distress is not a prerequisite for the recovery of compensatory damages under the … (FEHA) for mental anguish and humiliation.”15 • Jury Verdicts. Jury verdicts are helpful in framing similar facts/ evidence amounting to emotional distress awards in monetary terms. As the majority of civil cases settle before trial, jury verdicts should be just one tool of many. Some California appellate decisions are illustrative nonetheless.16 • Other Documentation. Other helpful evidence can come in the form of documentation such as medical notes, layperson testimony of an employee’s distress, communications evidencing distress (text messages, emails) and diaries. Attorneys are encouraged to get creative as different employees experience distress in varying ways. For example, if an employee was once a health guru, but now eats junk food and no longer exercises—pulling an employee’s gym records to show declining visits and collecting receipts of junk food purchases may be a scrappy way to show mental anguish or a precursor to depression. Using these tools will help attorneys evaluate emotional distress, regardless of an economic anchor. If done with care and foresight, coun-

sel can better articulate an employee’s emotional damages, which in turn will allow employer counsel to better advise their clients about liability in relation thereto. Further, legitimizing emotional distress cases may afford representation to employees in need of legal help. In a fluctuating and unpredictable economy, damages (as well as cases) of all types should be properly and fully evaluated. s 1

State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042; see Cal. Gov. Code § 12965.

2 See Kelly-Zurian v. Wohl Shoe Co. (2d Dist. 1994) 22 Cal.App.4th 397, 418 (upholding $125,000 award as “evidence of emotional distress, standing alone, is sufficient to sustain the entire … verdict.”). 3

Hope v. California Youth Authority (2005) 134 Cal. App. 4th 577, 595 (citations and quotations omitted). 4 Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508. 5


David DePianto, The Hedonic Impact of “Stand-Alone” Emotional Harms – An Analysis of Survey Data, 36 LAW & PSYCHOLOGY REVIEW 115, 140 (2012). 15

Taylor v. Nabors Drilling USA, LP (App. 2 Dist. 2014) 222 Cal.App.4th 1228, 1247. 16 See Moran v. Qwest Communications International, Inc. (Cal. Ct. App., Aug. 27, 2012, A128840) 2012 WL 36450720, at *2027 (collecting and analyzing multiple cases that approved awards of noneconomic damages with varying facts).




* Adjunct Professor Taxation Golden Gate University Law School, LL M Taxation Program

American Psychological Association, “How Stress Affects Your Health,” found at 6

Sethanne Howard and Mark W. Crandall, MD, “Post Traumatic Stress Disorder – What Happens in the Brain?” Washington Academy of Sciences (Fall 2007), page 13.


Id. at 14.

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Special thanks goes to attorney and mediator David Lowe, Rudy, Exelrod, Zieff & Lowe, LLP, attorney and mediator Jamie Dupree, Futterman Dupree Dodd Croley Maier, LLP, and attorney Beth W. Mora, Mora Employment Law, for their practical knowledge and experience.

Scott A. Moss and Peter H. Huang, “How The New Economics Can Improve Employment Discrimination Law, And How Economics Can Survive the Demise of the ’Rational Actor’”, 51 William and Mary L. Rev. 183, 199-200 (2009). Id.

See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234 (making distinction between emotional distress in harassment claims versus termination claims). 12

Moss and Huang, supra, at 212-215.


Id. at 219-220.

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Rockin’ the Joint Session

by Margaret J. Grover


re you missing opportunities to resolve your employment litigation because you decline a joint session during mediation? Many employment attorneys and some mediators use only private caucuses in mediating an employment case. The trend against joint session began in employment litigation, to avoid inherent power imbalances and potentially emotional confrontations. With thoughtful preparation, however, joint sessions can generate trust in the process, help the parties identify areas of common understanding, and lower barriers to settlement. “Joint session” broadly refers to any meeting in which the mediator facilitates direct conversations between opposing parties or counsel. One common joint session is the “meet and greet” at the outset of the mediation, including all parties and counsel. Bringing counsel or the parties together later in the mediation may resolve an impasse or expedite final agreement. The opportunities and risks inherent in joint sessions should be evaluated before deciding whether, or when, a joint session is appropriate.

1. Establishing Procedural Fairness and Tone Ground rules should be settled before any joint session. The parties agree to listen respectfully, not interrupt and not engage in direct questioning. Counsel can make any special concerns known to the mediator. Finally, the mediator is permitted to conclude any joint session if emotions get too hot, the parties overreact or anyone does not comply with established rules.



The initial joint session can set the tone for the day. By hearing the mediator describe the process, the parties confirm that each side is being similarly treated. By his or her demeanor, the mediator can encourage professional and respectful exchanges. The mediator and counsel can openly acknowledge that each party may have an honest recollection of events, but those recollections may differ. The parties can be encouraged to recognize that a jury could accept either party’s recollection or conclude that neither party was completely accurate. A general discussion of the risks and costs of litigation and benefits of a consensual solution can encourage flexibility, before the parties’ positions are stated.

2. Establishing Competence of Counsel Mediation may provide a litigant’s first opportunity to observe his or her attorney’s advocacy. Before then, the client’s experience may be limited to initial case evaluation, responding to discovery and depositions. Watching counsel make an articulate, effective presentation allows the client to feel confident. This confidence can carry over to private caucuses, when the attorney may need to acknowledge weaknesses or recommend settling at an amount that is outside the client’s anticipated settlement range.

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3. Effectively Presenting the Case The joint session provides a unique opportunity for counsel to communicate directly with the other side. Most communications during litigation are presented to opposing counsel, who filter the communication and provide their own analysis. Even the most effective mediators will not convey a party’s position as effectively as the party’s representative. Effective advocacy in a joint session requires understanding the audience. The communication techniques are different than courtroom advocacy. The opposing party may shrink from inflated rhetoric and severe pronouncements or may interpret stringent statements as a sign that the party is not prepared to negotiate. A good advocate takes the opportunity to speak persuasively to the opposing party by presenting his or her client’s case clearly and confidently.

4. Permitting the Parties to Speak The parties can often be effective advocates. Information conveyed directly from the parties, rather than through the mediator, can be powerful. The presentations can help both parties and counsel understand the perspectives and genesis of the dispute. If the parties elect early mediation, the joint session may be the first opportunity for counsel to evaluate the key witnesses.

portunity automatically. A reasonable demonstration of emotion can enhance the plaintiff’s credibility. In addition, presenting his or her case to the other side can allow the employee to feel heard and more willing to resolve the claims. Selecting and preparing the corporate representative can be difficult. No single person may understand all relevant facts. The employer’s spokesperson should have some personal knowledge of the facts. Typically, the individual actor, whether alleged harasser or decision-maker, is not the best corporate representative. The actor’s supervisor, a human resources professional, or another senior administrator or executive may have more credibility with the plaintiff. The representative may be responding to statements that differ widely from what he or she has been told. Counsel should be prepared to intervene if the employer’s representative attempts to address matters outside personal knowledge or threatens the mediation process.

5. Joint Sessions Later During Mediation As the mediation progresses through the private caucus process, a limited joint session may become useful. This may be a session with the parties themselves, with counsel only or with all hands.

The plaintiff’s presentation can help the defense understand its risks and provide forceful evidence of damages. While discussions of the real-life impact of employment decisions can be difficult, hearing the plaintiff discuss those effects can significantly change the defense evaluation of the case.

The issues to be addressed in joint session may dictate who is involved. For example, when the mediation is bogged down because the parties lack sufficient understanding of the case, the mediator may invite counsel to discuss what discovery should be conducted before resuming the mediation.

However, not every plaintiff can advocate effectively. Emotions, the unfamiliar setting, and the need to discuss personal matters before strangers or the employer can be overwhelming. The possibility of an emotional presentation should not cause the plaintiff to decline the op-

When agreement is likely, but a letter of reference or an apology will allow them to conclude the resolution, the parties can meet face-to-face. Flexibility and an open mind throughout the process are key to getting the most out of the joint session.



Joint Session cont. from page 17

6. Controlling Risks The risks inherent in joint sessions can be reduced by (1) having the parties present their cases to the mediator first in private to allow pent up emotions to be expressed, resulting in a calmer joint presentation; (2) time limits for both counsel and parties requiring them to focus on the important facts and ideas they want to convey; and (3) ground rules established in advance to set the expectations and allow the mediator to promptly terminate the joint session if it becomes counterproductive.

8. Preparing for Joint Session Preparation is key to the effective joint session. Counsel should

discuss the pros and cons of joint session openly with the mediator, considering options, ground rules and whether an early joint session, a later joint session or only private caucuses would provide the most effective tools.

employees in all phases of litigation. Ms. Grover enjoys serving as a mediator and helping others resolve employment-related disputes.

Whether the client has never been through litigation or is very familiar with the process, preparation is essential.


Discuss the process and likely evidence, practice the client’s presentation and ensure the client understands the need to control reactions. Extra time in preparation will result in a more productive mediation. s

You handle the estate, we do the contest. Cases, except conservatorships, often handled on a contingent fee basis, but can be hourly. Referral fee where appropriate. Pedder, Hesseltine, Walker & Toth, LLP

Margaret Grover is a partner with Wendel, Rosen, Black & Dean LLP. For nearly 30 years, Ms. Grover’s practice has focused on California employment law. She has represented both employers and

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You Won! Now What?

Three Tips When Applying for Prevailing Party Fees by Kevin R. Allen, Esq.


ongratulations, you’ve won your case! Your client is ecstatic and, assuming there is no appeal, the only thing left to do is to make an application for prevailing party fees (and to enforce your judgment, but that is another article altogether). Over 90 percent of cases settle before trial, so you haven’t had to make a fee application in years. This article provides you with three quick tips when making a fee application. Tip #1: Show the court clearly that your dispute falls within an exception to the “American Rule” for attorney’s fees. The general rule in the United States, the so-called “American Rule,” is that each side pays its own attorney’s fees regardless of who wins the underlying dispute. The rule does not apply where a contract provision1 or statute specifically provides for prevailing party fees. There are many fee shifting statutes available, particularly in employment cases, but they differ in a few important respects. Some are mandatory and require an award of fees,2 whereas others are discretionary and allow a tribunal to reduce or even deny an award under certain circumstances.3 Some fee shifting statutes are one way, meaning that they only allow for a prevailing employee to collect fees, whereas others apply to either

party.4 Some are tied into prevailing on a specific type of claim, whereas others are available to any plaintiff who created a significant benefit for the public.5 For these reasons, your application should cite each basis for why the court should award your fees and indicate whether the award is mandatory or discretionary. Tip #2: Show that your client is the “prevailing party.” In order to collect prevailing party fees, you must first establish that you are the “prevailing party.” In some cases it is simple. Where there is a mandatory fee shifting pursuant to statute, it is usually fairly easy to show that a party is (or is not) the prevailing party as to the claim covered by the statute. It is not always so simple when dealing with a contractual provision where there can only be one prevailing party.6 For example, if a party only prevailed on one of his or her four claims, you can almost guarantee the opposing party will argue it prevailed on the action as a whole since it successfully defended against the other three. Under such circumstances, it will be particularly important how you frame the case. If you only prevailed on one cause of action, perhaps the others can be viewed as ancillary or derivative claims. Maybe the winning claim had a higher dollar value or took up more time or more

law and motion work or discovery than the other claims. However you do it, you need to convince the court that you won the case. In a close call, the tribunal might decide that neither party should be deemed the prevailing party7 or, even worse, that your opponent prevailed because he or she won more claims. Tip #3: Provide sufficient evidence to support the reasonableness of both your requested hourly rate and hours worked. Once you are deemed the prevailing party, the question remains how much you should be awarded. The U.S. Supreme Court has described the “lodestar” method as the “guiding light” of “fee-shifting jurisprudence,” and has “established a ‘strong presumption’ that the lodestar represents the ‘reasonable’ fee.”8 The lodestar figure is calculated by multiplying the reasonable rate for comparable legal services in the local community for litigation of the same type by the number of hours spent on the case.9 There are several ways to support the reasonableness of your hourly rate. You should always provide a declaration to support your requested hourly rate.10 The declaration can attest that clients typically pay this



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Prevailing Party Fees cont. from page 19

amount per hour or that tribunals have approved the requested rate in other cases. Sometimes this is not possible. Many plaintiffs’ attorneys rarely if ever perform hourly work. Also, the hourly rate that is charged to a client may be less than the reasonable “market” rate for the attorney’s services.11 For this reason, you should buttress your fee application with support from third parties. The most effective way to do so is to provide declarations from other attorneys, ideally from the same region and practice area as you. The declaration should describe the attorney’s hourly rate and opine on the reasonableness of your proposed rate. A declaration from a reliable attorney’s fee expert can also be particularly strong evidence. In a pinch, you may also want to cite to the “Laffey Matrix,” a fairly well-established source that federal and state courts sometimes use to determine reasonable rates by experience for particular communities.12 The matrix is not perfect, as it reflects rates for the District of Columbia that must then be adjusted for your locality through the use of federal locality pay differentials.13 (Some courts do not place much reliance the matrix, so it should be used in addition to the other sources.)

ably advisable to describe the hours spent on potentially non-fee award claims. Otherwise, the tribunal may do it for you or even deny your application for lack of evidence. s

See Civil Code section 1717(b)(1). (“The court may also determine that there is no party prevailing on the contract for purposes of this section.”)


9 See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131–1132; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242–1243.


See City of Burlington v. Dague et al. (1992) 505 US 557, 562.

See Civil Code section 1717(a) (“In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded … to the prevailing party, then the party who is determined to be the party prevailing on the contract … shall be entitled to reasonable attorney’s fees in addition to other costs. Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.”)


Prevailing market rates may be demonstrated by declarations from the moving party’s own counsel. Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.

11 Margolin v. Regional Planning Comm’n of Los Angeles Cnty. (1982) 134 Cal.App.3d 999, 1004 (“market value” is proper analysis to set reasonable hourly rate, not “cost plus” basis, because otherwise “cost plus” would “reward the [losing party] based on the fortuity of the identity of [the prevailing party’s] counsel”).


Labor Code section 1194(a). (“Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action … reasonable attorney’s fees, and costs of suit.”)


See In Re HPL Technologies, Inc. Securities Litigation (N.D. Cal. 2005) 366 F.Supp.2d 912, 921.


See general-schedule/.


In discrimination cases brought under FEHA, the “prevailing plaintiff ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’” Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1405, citing Newman v. Piggle Park Enterprises (1968) 390 U.S. 400, 402.



See Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130 (“Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.”

See e.g., Labor Code section 218.5.


See e.g., Code of Civil Procedure section 1021.5.

Kevin R. Allen, Esq., is the principal of the Allen Attorney Group in Walnut Creek. He represents employees and small business clients in trial and arbitration with a strong emphasis on wage and hour and class action issues.


See e.g. Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal. App. 4th 515, 539 (“[U]nder Civil Code section 1717, there may only be one prevailing party entitled to attorney fees on a given contract in a given lawsuit.”).

Lastly, you need to support the reasonableness of your hours. This can be complicated where the complaint contains some causes of action that allow for fee shifting and some that do not, or where you only won some of the claims. In such cases, you may still be able to seek an award for all of your time but only if the claims are intertwined or overlapping in nature.14 Be careful not to overreach when making such an argument, and if you think there is a chance the court will disagree, it is prob-


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Employment Law at the Movies: You Can’t Go Wrong Watching These Workplace Documentaries by Marjorie Wallace What’s your pleasure: A humorous yet horrifying reality check or an inspiring drama? Robert Reich’s “Inequality for All”

claim that this income inequality is bad for the rich, too.

In this funny but horrifying reality check about the dramatic decline and stagnation of middle class income since the 1980s while the top 1 percenters’ incomes skyrocketed, former Labor Secretary, now UC Berkeley professor Robert Reich, forces viewers to face facts, explains why this income inequality threatens our economy and democracy, and suggests a plan to fix it.

Reich and Nick Hanauer, a cogent billionaire venture capitalist and early Amazon investor, proclaim the middle class as the real job creators, since their sheer numbers and demand for goods and services drive our consumer economy.

He does this with humor, case studies and an income data chart graphing the last 30 years of a sharp and rising U.S. income gap between the top 1 percent and the middle class, which eerily mimics the Bay Bridge’s curve. It turns out that all developed nations, even China, have more income equality than us. John Stewart quips, “Take that, Uganda and Rwanda,” because we at least outrank them—pure horror you can’t help laughing about. The “suspension bridge” graph also shows that the most dramatic income inequality years, 1928 and 2007, preceded the economic disasters of the Great Depression in 1929, and the Great Recession in 2008, supporting Reich’s



They forcefully argue that as long as the current trend of middle class instability continues, our economy will remain unstable. Through poignant case studies of parents struggling to keep their families in the middle class, Reich builds his case that college degrees, government investments, unions and home equity in the 30 years post World War II created the dramatic rise in middle class incomes. Then the middle class took huge hits as college became increasingly expensive, union membership declined and the subprime home mortgage bubble burst. Record numbers of working women and increased borrowing only stalled the inevitable drop. Reich’s solution? Copy our 19401970s selves when the government invested huge sums into higher education and infrastructure. The tax rate on the rich was 70-90 percent— dramatically higher than now. This movie adds new perspective to this year’s discussion on raising

the federal minimum wage (the state minimum is now $9 per hour). It also provides a policy rationale for the recent increased scrutiny of employees misclassified as independent contractors or overtime exempt and the rise in wage and hour class actions in recent decades. In an era of rising income inequality, one would expect a graph of these facts to look like one side of Mt. Diablo, as middle class workers cling to the little they still get.

“Anita: Speaking Truth to Power” This movie time travels to October 1991, for the dramatic Senate Judiciary Committee hearings for Supreme Court nominee Clarence Thomas; widely seen as the tipping point for acknowledging workplace sexual harassment. Intense national debate followed and Anita Hill was transformed from an obscure Oklahoma state contracts law professor to a women’s rights and equality icon. Unfazed by nine hours of condescending and repetitive grilling by a mostly clueless and often openly hostile Senate Judiciary Committee of aging white men, Hill is grace and calm under fire.

Again and again she calmly and patiently repeats the sordid details of what she considered were offensive and humiliating sexual comments made by Supreme Court nominee Clarence Thomas, when he was her boss at the Department of Education’s Civil Rights Division in the 1980s. She claimed Thomas continually asked her out and met her refusals with offensive and humiliating sexual comments about: (1) his genitals; (2) pubic hair on his can of Coke; and (3) the breasts of women in pornographic movies he watched. She said she felt vulnerable, powerless and humiliated. Hill alleged hostile work environment sexual harassment (CACI 2521A, Gov. Code section 12940 (j)(1) and (4)(C)), possibly quid pro quo sexual harassment (CACI 2520, Gov. Code section 12940 (j)(1) and (4)(C)) and retaliation (CACI 2505, Gov. Code section 12940(h)). The evidence that came out included: (1) three corroborating contemporaneous witnesses, including two distinguished African-American male lawyers; (2) other women prepared to testify that Thomas sexually harassed them, but were never called by Committee Chair Biden; and (3) an unprecedented, voluntary polygraph test that Hill passed.



At the Movies cont. from page 25 Clarence Thomas adamantly denied her claims and brilliantly played the “race card,” calling her testimony “disgusting” and “a hightech lynching of an uppity black.” The Senate confirmed Thomas to the Supreme Court by the narrowest margin ever. Hill stated that 1991 polls indicated seven out of 10 people thought she lied, but eventually the poll numbers reversed. After testifying, Hill’s life changed forever. She became a polarizing public icon; her life was threatened, yet she was revered, and her basement file cabinets stored 25,000 pro and con letters. Republican Oklahoma state senators unsuccessfully attempted to get first Hill, then her dean fired, and then shut down the law school. She transformed from a contracts professor to a scholar on sexual harassment and equality.

The film also shows her reaching out to young women, many of whom previously had never heard of her. Her testimony sparked vigorous debate on sexual harassment. The year 1992 was dubbed “the Year of the Woman” after so many women were elected to Congress, and was perhaps a reaction to the all-white male Judiciary Committee. Today, it is widely accepted that women are subjected to workplace sexual harassment. The California Department of Fair Employment and Housing website reports that since 2003, sexual harassment has comprised between 6 and 12 percent of annual claims. The more novel issues today are the military and male sexual harassment claims, including male to male claims. This year, in reaction to a male to male sexual harassment case, Gov. Code section 12940 (4)(C) was amended to clarify that a plaintiff need not show the harasser was motivated by sexual desire.

Proposed legislation bars the disturbing trend of conditioning wages on signing inconspicuous or involuntary releases of sexual harassment claims (SB 1407). While the most current issues may have changed, nevertheless, 23 years later, Anita Hill’s speaking truth to power continues to be inspiring and relevant. s Martinez based solo employment lawyer Marjorie Wallace typically represents middle class, private or public sector individual employees and occasionally small businesses on discrimination, harassment or wage claims. The CCCBA Employment Law Section Board member has law degrees from UC Hastings and Yale Law School. You can reach her at (925) 827-2936,, or

Morrill Law Firm 2175 N. California Blvd., Suite 424 • Walnut Creek, CA 94596 Phone 925.322.8615 • Fax 925.357.3151

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The Sugar Wars of Crockett by William Mero

“It was the best of times ... It was the worst of times.”


hat famous quote from Dickens could also fairly well describe Crockett in the late 1930s. The small, blue collar town of Crockett hugged the hilly shores of the Carquinez Straits, gateway for ocean-going ships seeking the golden bounty of California’s Central Valley. The Great Depression had caused an upheaval in the world’s economic and social structure. Even tiny Contra Costa County was not immune to the vast changes and conflicts sweeping the United States. The county’s most famous labor battle took place in 1938 on Crockett’s main street between rival CIO and AFL labor unions over control of the C&H Sugar refinery’s labor force. The conflict brought Crockett national attention. All roads into Crockett were sealed off by the California Highway Patrol and the Sheriff’s Department in order to control the growing bloodshed. The C&H Sugar refinery struggled after the nation’s economic collapse in 1929. Sugar prices fell dramatically. Pay cuts, reduced working hours and a shrinking work force hit the workers of C&H hard. These stern business measures kept the refinery operating, most workers employed and the Crockett population more prosperous than many communities around the nation. Nevertheless, bad times and more liberal labor laws

led the C&H employees to organize for improved rights and benefits. The CIO Sugar Workers Union and the ILWU Warehouse Union struck in 1935 and 1937. Then in 1938, an especially bitter strike tore apart the closeknit Crockett community. The violent labor dispute eventually pitted neighbor against neighbor and brother against brother. During the late 1930s, the C&H refinery operated under an AFL closed shop agreement. On March 11, 1938, the CIO Sugar Workers Union set up picket lines when their leaders were suspended under the terms of the closed shop contract. The CIO warehousemen, in the midst of negotiating a new labor contract, now refused to cross the new CIO picket lines. The sugar refinery shut down and all union members’ paychecks stopped. Economic desperation began to infect the small community. A week later on March 16, over 600 Crockett women met in the Crockett Community Auditorium. They passed a resolution petitioning C&H to honor the American Federation of Labor’s request to reopen the refinery. However, the CIO warehousemen’s union refused to settle their wage dispute with C&H. The picket lines remained in place. C&H management decided it was safer to keep the refinery closed until the labor dispute was settled. The stage was set for serious conflict. Patience exhausted, fighting between the two unions began on the evening of the twenty-seventh day of the strike. Chanting, “Let’s go get ‘em,” AFL union members marched down Winslow Avenue. Blood flowed as 400 members of the AFL charged the CIO picket line and se-



Sugar Wars cont. from page 27 verely beat many of the warehousemen and sugar workers blocking the refinery entrances. The CIO members retreated to the CIO International Longshoremen’s Union Hall on Loring Avenue. Badly outnumbered, the CIO warehousemen armed themselves with clubs and fought back. Contra Costa deputy sheriffs and California Highway Patrol officers repeatedly charged the rioters and fired volley after volley of tear gas bombs. Loring Avenue filled with choking clouds of stinging fumes. Fighting raged for over 40 minutes. Using clubs and fists, dozens of men were beaten as the surge of battle flowed up and down the street. Some warehousemen, trying to escape in a car, crashed into the crowd, running over one AFL member and hitting another. Other men suffered stab wounds from rioters wielding ice picks.



As a result of the day’s fighting, the AFL had driven the CIO strikers from the refinery. Now in control of the streets, the AFL demanded that C&H reopen the plant. Law enforcement officers sealed off Crockett in order to prevent both union factions from being reinforced. It was luck alone that no one was killed. All access to Crockett was blocked. Cars and their occupants were searched for invaders and weapons. Railroad trains were also searched for intruding union toughs. Merchants along Loring Avenue barricaded their shops. Fortunately, the sudden violence shocked many into reconsidering their actions. Cooler heads began to prevail and a shaky surface calm gradually returned to the little Contra Costa community. With the picket lines now under total AFL control, the refinery soon reopened. Now virtually powerless, the CIO warehousemen voted two weeks later 152 to 115 to accept the contract and return to work.

Lost paychecks, vanished company profits, local business losses and personal hatreds were the bitter fruits of the nasty 41-day strike. During the war, outsiders and women replaced most of the old employees. The CIO and AFL later merged, ending their long-standing rivalry. After World War II, the closed shop, which caused the initial conflict in the C&H refinery, was finally outlawed nationally. Even now, after over 76 years, there still remain some who have not forgotten or forgiven the tragic circumstances surrounding the great sugar war of 1938. s This article was reprinted with permission from the Contra Costa County Historical Society. They are committed to protecting the County’s future by preserving the documents and relics of the County’s past. For more information, visit their website at

pro bono spotlight

The Legal Aid Society-Employment Law Center


ometimes the best thing you can do for a client who cannot afford to retain your services is to offer them resources. If your client’s issue pertains to employment law, a potential resource is the Legal Aid Society-Employment Law Center (LAS-ELC).

The LAS-ELC offers low-income workers throughout California free and confidential information regarding their employment rights through its Workers’ Rights Clinic, which is not only offered in the Bay Area, but all over California. Clinics are held in San Francisco, Berkeley, Fresno and Santa Ana, and are staffed by law students and paralegals who are supervised and trained by attorneys practicing employment law.

by Samantha Sepehr

More locally, the East Bay Community Law Center hosts the clinic in Berkeley at 3130 Shattuck Avenue. Services are offered in many languages, including Spanish, Mandarin and Cantonese. For those who are unable to attend the various clinics, the Workers’ Rights Clinic also counsels people by telephone. There are income guidelines to qualify for services. The clinics generally do not represent clients, but they do provide basic, yet important, information on a wide variety of employment issues, ranging from denial of wages, work and safety issues and unemployment benefits, to discrimination, harassment and wrongful termination. For more information about the clinic, please call: (415) 864-8208 or visit the LAS-ELC website at: s

Samantha Sepehr, Former Director of the Elder Law Center, is a Partner at Steele, George, Schofield, and Ramos LLP located in Walnut Creek.





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w e N s ’ A B C C C t : r o t c Mee e r i D e v i t Execu


know that many of you know me as the former Associate Executive Director of the CCCBA, but you probably don’t know much about me outside of that role.

I grew up in Mill Valley, the oldest of six girls all very close in age. In fact, at one point my parents had six teenage daughters. I still marvel that they managed to keep their sanity during that time! Most of my family still lives in the Bay Area, so I’m able to spend lots of time with my parents, sisters and their families. After receiving my BA in sociology from UC Santa Barbara, I moved to New Zealand. If you’ve never been to ”The Land of the Long White Cloud,” I highly recommend visiting, especially if you love the outdoors and are adventurous (bungee-jumping is a bit of a national obsession).

Eventually I moved back to the U.S. and continued working in the non-profit sector, where I gained experience in program administration and management. Prior to coming to the CCCBA in 2011, I worked as a Program Manager for the Volunteer Center of the East Bay, where I assisted non-profits in improving their volunteer recruitment and retention efforts. I am the proud parent of three teenagers—my oldest daughter, Emmy, is currently a freshman at Chico State studying nursing. My younger daughter, Annemarie, is a junior at Clayton Valley Charter High School and my son, Kieran, is a freshman. I have found that parenting teens is a lot more fun than I expected! In my spare time, I love being outdoors—hiking, camping, running, attending outdoor concerts, theater, etc.

My first ”real” job in New Zealand was providing statistical analysis for the Accident Compensation Corporation, a government crown agency.

I also volunteer as a Mandated Reporter Trainer with the Child Abuse Prevention Council of Contra Costa and have been involved with the Avon Walk for Breast Cancer for the last 14 years.

A few years later, I made a big career switch and became the manager of a battered women’s shelter where I had been a volunteer. This began my foray into the non-profit world.

I am looking forward to my new role as Executive Director, where I get to work with many of our amazing members who donate so much of their time and talent to our community! s




Firms with 20-29 attorneys: Bowles & Verna, LLP McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP

Firms with 15-19 attorneys: Buchman Provine Brothers Smith, LLP Clapp Moroney Bellagamba Vucinich Beeman Scheley Gagen, McCoy, McMahon, Koss, Markowitz & Raines Greenan, Peffer, Sallander & Lally, LLP Littler Mendelson, PC

Firms with 5-14 attorneys: Bramson, Plutzik, Mahler & Birkhaeuser, LLP Brown, Church & Gee Casper, Meadows, Schwartz & Cook Cooper, White & Cooper, LLP Craddick, Candland & Conti Doyle Golde Grossman Family Law Group Edrington, Schirmer & Murphy Frankel Goldware Ferber, LLP Galloway, Lucchese, Everson & Picchi Gillin, Jacobson, Ellis, Larsen & Lucey Hartog & Baer, PC Livingston Law Firm, PC Steele, George, Schofield & Ramos, LLP Tenax Law Group, PC Timken Johnson, LLP Vasquez, Benisek & Lindgren, LLP Whiting, Fallon, Ross & Abel, LLP Thank you for your support and commitment! For additional information, contact Membership Coordinator Jenny Comages at 925.370.2543 or email



Tenax Law Group, PC | Timken Johnson, LLP | Vasquez, Benisek & Lindgren, LLP | Whitng, Fallon, Ross & Abel, LLP

Archer Norris Miller Starr Regalia

Gillin, Jacobson, Ellis, Larsen & Lucey | Hartog & Baer, PC | Livingston Law Firm, PC | Steele, George, Schofeld & Ramos, LLP

Firms with 30+ attorneys:

Edrington, Schirmer & Murphy | Frankel Goldware Ferber, LLP | Galloway, Lucchese, Everson & Picchi


Cooper, White & Cooper, LLP | Craddick, Candland & Cont | Doyle Golde Grossman Family Law Group

Gagen, McCoy, McMahon, Koss, Markowitz & Raines | Greenan, Pefer, Sallander & Lally, LLP | Litler Mendelson, PC Bramson, Plutzik, Mahler & Birkhaeuser, LLP | Brown, Church & Gee | Casper, Meadows, Schwartz & Cook

Buchman Provine Brothers Smith, LLP | Clapp Moroney Bellagamba Vucinich Beeman Scheley

Archer Norris | Miller Starr Regalia | Bowles & Verna, LLP | | McNamara, Ney, Beaty, Slatery, Borges & Ambacher, LLP

We gratefully acknowledge our


Sept 9 | Barristers, Criminal Law and Litigation Sections

Trials 101: Civil and Criminal Case Management Essentials, Part 4: Trial Part 1: What to Prepare for the Trial and What Happens During the Trial more details on page 34 Sept 10 | Intellectual Property Section

Dividend Infringement: Fed. Cir. to Go Back to the Drawing Board more details on page 34 Sept 10 | Family Law Section

Family Law Appeals, Writs and Stays. What You Need to Know as the Trial Lawyer more details on page 34 Sept 11 | Bankruptcy Law Section

Bankruptcy Appeals: What You Really Need to Know, A Beginner’s Guide more details on page 34 Sept 12 | Business Law & Corporate Counsel Section

The Price is Right...or Maybe Not? more details on page 34 Sept 16 | CCCBA

Lawyer’s Antidote to Self-Destructive Habits: Avoiding Substance and Other Abuses: Part 5 of the 2014 Law Practice Management Series more details on page 34 Sept 18 | Women’s Section

Women in the Workplace: Developing Legal Issues for the New Female Professional more details on page 35 Sept 19 | Real Estate Section

Glaski v. Bank of America, National Association (2013) 218 Cal.App.4th 1079: Mortgage Securitization and Impacts on Deeds of Trusts more details on page 35 Sept 19 | CCCBA

Lisa Reep’s Retirement Reception more details on page 21 Sept 23 | Barristers and Employment Law Sections

Employment Litigation: The Basics of Building & Defending a Case more details on page 35

Sept 25 | Estate Planning & Probate Section

Forensic Document Examination more details on page 35 Sept 27 | CCCBA

Bench/Bar BBQ & Softball Game more details on page 35 Sept 30 | CCCBA

Positioning Yourself for Job Search Success more details on page 35 Oct 7 | CCCBA

Bench/Bar Roundtable more details on page 36 Oct 7 | Barristers, Criminal Law and Litigation Sections

Trials 101: Civil and Criminal Case Management Essentials, Part 5: Trial Part 2: Testimony, Openings and Closings, Appeals/Writs more details on page 36 Oct 8-10 | UC Berkeley Law

Fundamentals of Banking Law more details on page 36 Oct 10 | Family Law Section

“Getting Out”: Out of the Case, Out of the Practice, Out of Dodge more details on page 36 Oct 17 | Real Estate Section

Branscomb v. JP Morgan Chase: Equitable Subrogation and Impacts on Deeds of Trust more details on page 36 Oct 21 | CCCBA

Transition Planning for Law Firms, Part 6 of the 2014 Law Practice Management Series more details on page 36 Oct 29 | Employment Law Section

Employment Law Basics: What Every California Business Owner Needs to Know more details on page 37 Nov 21 | CCCBA

20th Annual MCLE Spectacular more details on page 22



September 9 | Barristers, Criminal Law and Litigation Sections

Trials 101: Civil & Criminal Case Management Essentials, Part 4: Trial Part 1: What to Prepare for the Trial and What Happens During the Trial Part 4 will discuss motions in limine, voir dire, page line designations, exhibits and openings, witness list, jury instructions, direct/crossexamination witnesses and Batson/Wheeler. Speakers: Natasha S. Chee, Esq. Dorian Peters, Esq. Jeffrey T. Thayer, Esq. Time: 6 pm – 7:30 pm Location: JFK University 100 Ellinwood Way, Room S304, Pleasant Hill MCLE: 1 hour general and 0.5 hours elimination of bias MCLE credit Cost: $20 for section members and law student members, $25 for CCCBA members, $30 for non-members

September 10 | Intellectual Property Section

September 10 | Family Law Section

Dividend Infringement: Fed. Cir. to Go Back to the Drawing Board

Family Law Appeals, Writs and Stays. What You Need to Know as the Trial Lawyer

Light breakfast will be provided. Registration is from 7:30 to 8 am, program starts at 8 am.

Speaker: Garrett Dailey, Esq., CFLS, AAML

Speaker: Mark Mathison, Patent Attorney

Time: 12 pm – 1:15 pm

Time: 7:30 am – 9 am

Location: Contra Costa Country Club 801 Golf Club Rd., Pleasant Hill

Location: Kilpatrick Townsend 2175 N. California Blvd., Ste. 600, Walnut Creek MCLE: 1 hour general MCLE credit Cost: $5 for section members, free for law student members, $10 for CCCBA members, $20 for non-members Registration: Online at More Info: Contact Elizabeth Galliett at (925) 370-2540

MCLE: 1 hour family law specialization MCLE credit Cost: $50 for section members and law student members, $75 for CCCBA members, $100 for non-members Registration: Go to the Family Law website at More Info: Contact Therese Bruce at (925) 930-6789

Registration: Online at September 11 | Bankruptcy Law Section

Bankruptcy Appeals: What You Really Need to Know, A Beginner’s Guide

September 12 | Business Law & Corporate Counsel Section

The Price is Right...or Maybe Not?

Speakers: Michael J. Primus, Esq., Law Office of Michael J. Primus Leo G. Spanos, Staff Attorney, Office of Martha G. Bronitsky

This program will discuss valuing privately held businesses for family law and estate-planning purposes a well as for sales and acquisitions. Breakfast is included.

Time: 12 pm – 1:30 pm

Speaker: Josette Ferrer, Managing Director, Clairent Advisors LLC

Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Rd., Concord MCLE: 1 hour general MCLE credit Cost: $25 for section members and law student members, $35 for CCCBA members, $45 for non-members. Lunch is included.

Time: 7:30 am – 9 am Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general MCLE credit

Registration: Online at

Cost: $25 for section members, $20 for law student members, $30 for CCCBA Members, $35 for non-members.

More Info: Contact Elizabeth Galliett at (925) 370-2540

Registration: Online at More Info: Contact Elizabeth Galliett at (925) 370-2540

September 16 | CCCBA

Lawyer’s Antidote to Self-Destructive Habits: Avoiding Substance and Other Abuses: Part 5 of the 2014 Law Practice Management Series This MCLE will provide an overview and understanding of the causes and treatment of depression, as well as addiction to alcohol and drugs in a non-threatening way that utilizes lawyers’ own experiences with addictive patterns. Speakers: Jeena Cho, JC Law Group, PC Mark Perlmutter Time: 4:30 pm – 6 pm Location: JFK University 100 Ellinwood Way, Room S312, Pleasant Hill MCLE: 1.5 hours competence issues MCLE credit Cost: $10 for law student members, $20 for CCCBA members, $30 for non-members Registration: Online at More Info: Contact Elizabeth Galliett at (925) 370-2540



September 18 | Women’s Section

September 19 | Real Estate Section

Women in the Workplace: Developing Legal Issues for the New Female Professional

Glaski v. Bank of America, National Association (2013) 218 Cal.App.4th 1079: Mortgage Securitization and Impacts on Deeds of Trusts

The program will give a cursory analysis of the difference between genders in salary/ compensation in similar professions and issues affecting pregnancy leave. Speaker: Beth Mora, Esq. Time: 11:30 am – 1 pm Location: Vic Stewart’s 850 South Broadway, Walnut Creek MCLE: 1 hour elimination of bias MCLE credit Cost: $50 for section members and law student members, $55 for CCCBA members, $60 for non-members. Lunch is included. Registration: Online at Please register by Sept. 15.

Speaker: Dean Christopherson Time: 7:30 am – 9 am Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general MCLE credit Cost: Free for section members, $5 for law student members, $15 for CCCBA members, $35 for non-members. Breakfast is included.

September 23 | Barristers and Employment Law Sections

Employment Litigation: The Basics of Building and Defending a Case Speakers: Maggie Grover, Partner, Wendel, Rosen, Black & Dean, LLP Mark Venardi, Partner, Venardi Zurada, LLP, Graduate Gerry Spence’s Trial Lawyer College Time: 4:30 pm – 6:30 pm Location: JFK University 100 Ellinwood Way, Pleasant Hill MCLE: 2 hours general MCLE credit

Registration: Online at

Cost: $15 for section members, $5 for student members, $20 for CCCBA members, $30 for non-members

More Info: Contact Elizabeth Galliett at (925) 370-2540

Registration: Online at More Info: Contact Elizabeth Galliett at (925) 370-2540

More Info: Contact Elizabeth Galliett at (925) 370-2540

September 25 | Estate Planning & Probate Section

Forensic Document Examination Speaker: David S. Moore, Forensic Document Examiner Time: 12 pm – 1:30 pm Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general MCLE credit Cost: $30 for section members, $40 for CCCBA Members, $50 for non-members Registration: Online at More Info: Contact Elizabeth Galliett at (925) 370-2540

September 27 | CCCBA

September 30 | CCCBA

Bench/Bar BBQ & Softball Game

Positioning Yourself for Job Search Success

Join us for our 2nd Annual Bench/Bar BBQ and Softball Game! We’ll provide the hamburgers, veggie burgers, hot dogs, condiments and soft drinks. Please RSVP so we make sure we have enough food. Bring food according to your MCLE Compliance Group: • • • •

Group 1 (A-G): Appetizers for 8 people Group 2 (H-M): Salad Group 3 (N-Z): Dessert for 8 people BYOB (no glass containers)

Please arrive promptly if you want to play (bring your glove)! Teams will be mixed. Supporters and cheerleaders encouraged.

This program will consist of 2 parts: The first part will be a Job Search panel that will discuss interviewing and resume skills. During the second part, attendees will be able to meet at practice area tables with experienced practitioners from Litigation, Family Law, Criminal and Employment law who will speak about finding jobs, internship opportunities and presentation skills specific to those practice areas. Time: 5 pm – 6:30 pm Location: JFK University 100 Ellinwood Way, Room S325, Pleasant Hill

Time: 3 pm – 7 pm

Registration: Online at

Location: Heather Farms Park 301 N. San Carlos Dr., Field 5, Walnut Creek

More Info: Contact Elizabeth Galliett at (925) 370-2540

Registration: Online at More Info: Contact Elizabeth Galliett at (925) 370-2540 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER


October 7 | CCCBA

Bench/Bar Roundtable Members of the CCCBA are invited to attend a meeting with Fast Track Supervising Judge Craddick and other Fast Track judges to discuss issues of general interest or concern.

Trials 101: Civil & Criminal Case Management Essentials, Part 5: Trial Part 2: Testimony, Openings and Closings, Appeals/Writs

The judges would like to know what’s on your mind. Please submit discussion topics to the Bar Association by September 30th to Elizabeth Galliett at Lunch will be provided.

Each session will cover a different part of the litigation process from both the criminal and civil aspects. Part 5 will discuss testimony, closing, appeals, openings, closings, speaking with jurors, and appeals/writs.

Speakers: Hon. Steve Austin Hon. Laurel Brady Hon. Judith Craddick Hon. George Spanos

Speakers: Natasha S. Chee, Esq. Dorian Peters, Esq. Jeffrey T. Thayer, Esq.

Time: 12 pm – 1:15 pm Location: Wakefield Taylor Courthouse Dept 9, 725 Court St., Room 320, Martinez MCLE: 1 hour general MCLE credit

Time: 6 pm – 7:30 pm Location: JFK University 100 Ellinwood Way, Room S304, Pleasant Hill MCLE: 1.5 hours general MCLE credit

October 8-10 | UC Berkeley Law

Fundamentals of Banking Law The UC Berkeley School of Law and Boston University School of Law are pleased to announce their sponsorship of Fundamentals of Banking Law (formerly Banking Law Basics), an intensive 2½-day program designed to familiarize participants with the basics of banking law, including the critical policies, concepts and regulations that have shaped 150 years of banking law from the passage of the 1863 National Bank Act to the present. Time: 8:30 am – 5:30 pm Location: Bancroft Hotel 2680 Bancroft Way, Berkeley MCLE: 19 hours general MCLE credit Registration: Online at

Registration: Online at

Cost: $20 for section members and law student members, $25 for CCCBA Members, $30 for non-members

More Info: Contact Elizabeth Galliett at (925) 370-2540

Registration: Online at

October 10 | Family Law Section

October 17 | Real Estate Section

October 21 | CCCBA

“Getting Out”: Out of the Case, Out of the Practice, Out of Dodge

Branscomb v. JP Morgan Chase: Equitable Subrogation and Impacts on Deeds of Trust

Transition Planning for Law Firms: Part 6 of the 2014 Law Practice Management Series

Speaker: Lee P. Bardellini

Valuation and Succession Strategies for Lawyers. Join CPA Mike Eggers and Oliver Bray as they discuss strategies for determining the value of and selling law firms; and alternately, how to close shop in an orderly fashion, and what happens if you don’t!

We will be covering everything from getting rid of the problem client, planning for orderly retirement, contingency planning for unexpected retirement due to death or incapacity, the ethics of handling client files, trust funds, and electronic case materials, and how to plan ahead so that you (or worse, your estate) doesn’t have a nightmare thrust on them. Speakers: Jerome Fishkin, Professional Liability Attorney Lee C. Pearce, CFLS Sue Talia, CFLS Time: 1:15 pm – 4:30 pm Location: Contra Costa Country Club 801 Golf Club Rd., Pleasant Hill MCLE: 2 hours ethics and 1 hour family law specialization MCLE credit Cost: $75 for section members and law student members, $100 for CCCBA members, $125 for non-members Registration: Go to the Family Law website at 36

October 7 | Barristers, Criminal Law and Litigation Sections


Time: 7:30 am – 9 am Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general MCLE credit (pending) Cost: Free for section members, $5 for law student members, $15 for CCCBA members, $35 for non-members. Lunch is included.

Speakers: Oliver Bray Mike Eggers, CPA

Registration: Online at

Location: JFK University 100 Ellinwood Way, Room S312, Pleasant Hill

More Info: Contact Elizabeth Galliett at (925) 370-2540

MCLE: 1 hour general and 0.5 hours ethics MCLE credit

Time: 4:30 pm – 6 pm

Cost: $10 for law student members, $20 for CCCBA members, $30 for non-members Registration: Online at More Info: Contact Elizabeth Galliett at (925) 370-2540

October 29 | Employment Law Section

Employment Law Basics: What Every California Business Owner Needs to Know Speakers: Michelle Ferber, Managing Partner, Frankel Goldware Ferber Tonya Hubinger, Partner, Buchman Provine Brothers Smith Time: 12 pm – 1:30 pm



Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general MCLE credit



Cost: $40 for section members, $35 for law student members, $45 for CCCBA members, $50 for non-members. Registration: Online at More Info: Contact Elizabeth Galliett at (925) 370-2540

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2121 N. California Blvd.  Suite 290 Walnut Creek, CA 94596

925.930.7388 fax