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1 OCTLA THE GAVEL A QUARTERLY PUBLICATION of the Orange County Trial Lawyers Association Nuts & Bolts police officer code 3 liability trial tips: power tool on being a lawyer: counselor homeowner bill of rights personal coaches settlement brain trust octla s top gun charity [page 31] In-Depth Analysis takeaways from brinker for california workers defeating an erisa lien with the statute of limitations OCTLA S 2012 TOP GUNS, PAGE 28 VOLUME 15, NUMBER 4 FALL 2012

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3 The GAVEL Volume 15, Number 4, Fall 2012 OCTLA OFFICERS President Douglas W. Schroeder President-Elect Scott B. Cooper st Vice President Casey R. Johnson nd Vice President Ted B. Wacker rd Vice President Vincent D. Howard Secretary H. Shaina Colover Treasurer Geraldine Ly Parliamentarian B. James Pantone BOARD OF DIRECTORS Melinda S. Bell Gregory Brown Anthony Burton Brent W. Caldwell Cynthia A. Craig Jonathan Dwork Jerry N. Gans Robert B. Gibson Geoffrey S. Gray Paul E. Lee Kevin G. Liebeck Christopher E. Purcell Solange E. Ritchie Sarah C. Serpa Adina T. Stern Dieter Zacher Immediate Past President Yoshiaki C. Kubota Executive Director Janet Thornton Editor Casey R. Johnson Verdicts & Settlements Editor Jonathan Dwork Announcements Editor Sarah C. Serpa Advertising Janet Thornton Graphic Designer Primary Design Printing The Wolf Printing Co The Gavel is published quarterly at a subscription rate of $50 per year. Periodicals postage paid at Lake Forest, California. Copyright 2012 Orange County Trial Lawyers Association. All rights reserved. Reproduction in whole or in part without written permission is prohibited. POSTMASTER: Send address changes to The Gavel, Moulton Parkway, #135, Laguna Hills, CA OCTLA Gavel OCTLA s Mission: To protect the rights of people who have been harmed by the wrongful acts of others, by providing superior education and training for attorneys, access to the collective resources, knowledge, and experience of our members, and promotion and support of laws which correct injustice and protect access to the civil justice system. CONTENTS columns 5 Editor s Commentary: Fall Color Casey R. Johnson, ESQ. 7 President s View: A Night to Celebrate Achievement and Share the Gift of Life Douglas W. Schroeder, ESQ. 20 On Being a Lawyer: Counselor Chris Mears, ESQ. 25 Trial Tips: Power Tool The Honorable David Brickner, RET. features 6 OCTLA Board Elections Form 21 OCTLA New Members 22 OCTLA Tidbits & Announcements 24 OCTLA Judges/Mediators/Arbitrators Evaluation Form 28 Top Gun Trial Lawyers of the Year 30 Donate Life Silent Auction Donation Form 31 Top Gun Charity: Donate Life 32 OCTLA Photo Library 51 OCTLA Verdicts & Settlements 53 OCTLA Calendar of Events in-depth analysis 8 Takeaways from Brinker for California Workers Kimberly A. Kralowec, ESQ. 12 Defeating an ERISA Lien with the Statute of Limitations Prof. Roger M. Baron and Anthony P. Lamb nuts & bolts 16 California s Homeowner Bill of Rights Brings Transparency Vincent D. Howard, ESQ. 17 Police Officer Code 3 Liability Jonathan Dwork, ESQ. 18 Using Personal Coaches for Business Development Kevin W. Brown, MBA 19 Do You Have a Settlement Brain Trust? Traci Kaas, CSSC The GAVEL is a publication of: ORANGE COUNTY TRIAL LAWYERS ASSOCIATION Moulton Parkway #135, Laguna Hills, CA PHONE FAX Editor: Casey R. Johnson Executive Director: Janet Thornton Disclaimer: OCTLA does not endorse or recommend other than those officially endorsed by OCTLA any individual or company it mentions in its magazine. Any business conducted is between the member and the individual or company. 3

4 Advertisers Index by Services Offered DeVinney & Dinneen Vocational & Economic Services Terrance Dinneen, M.S. C.R.C., C.E.A. For those cases in which Employability and Economic Losses are an issue We can provide the answers. Certified in both Rehabilitation and Economics Personal injury, wrongful termination, divorce, earning capacity, present value Extensive trial experience in both State and Federal Courts in California, Nevada and Oregon Annuities and Structured Settlements Patrick Farber Settlements Broker Kaas Settlement Consulting Appeals and Writs Donna Bader Charity Donate Life California Court Reporting Services Jilio-Ryan Hunter & Olsen, Inc Employment and Wrongful Discharge Law Law Offices of Charles Pernice Exhibits and Presentation Services Executive Presentations Court Graphix CSC Anatomy Arts Expert Services DeVinney & Dinneen Kars Advanced Materials, Inc Chandler & Associates OHM Corp Traffic Engineer Wm. Kunzman Legal Associations Public Law Center Litigation Support Services Adheya Systems Marketing Services Kevin Brown Legal Marketing Mediators & Arbitrators Judicate West JAMS The Resolution Experts Thomas D. Weaver ADR Services, Inc Medical Services Dr. Pete Thomas DPM, QME Plaintiff Legal Services Bisnar Chase Consumer Attorneys LLP Hodes Milman Liebeck LLP Klein & Wilson Panish, Shea & Boyle LLP Howard Law PC Video Services Verdict Videos Attorney Video Services, Inc Workers Comp. Legal Services Thomas F. Martin Gary E. Skawin years of practice and experience in Southern California Toll Free Serving the Nevada, California & Oregon area since

5 Guidelines for Manuscript Submission The Gavel accepts unsolicited manuscripts for consideration. Articles are judged on the basis of research, writing, topic, and interest to membership of OCTLA. The Gavel follows a modified version of the California Style Manual for legal citations. Manuscripts submitted should follow those rules as closely as possible. The Gavel prefers authors to avoid footnotes or endnotes, but such use will not be a basis for declining to publish an article. Authors should submit a copy of the article on disk or via , preferably in Microsoft Word format. Please include a photo and brief biography with all submissions. to: The Gavel retains copyright on all articles. The Gavel freely grants permission to others to reprint the article, upon their agreement to acknowledge the copyright. The editors may make editorial changes to an article, without changing its substance. Submissions to The Gavel are subject to editing. Editorial decisions are based on writing quality, subject matter, potential interest to The Gavel readers, and other concerns the Editor may deem relevant in her sole discretion. The views expressed in the content of The Gavel are those of the authors, and may not be reflective of the views or policy of the OCTLA, its board of directors, and/or its membership. The content of The Gavel shall not be construed as legal advice. The articles, commentary, advertisements, and/or any other content contained herein are the opinions of the authors, and are not intended to be relied upon as legal advice. The views, positions, interpretations of law and arguments of the authors herein are theirs alone, and no endorsement by the OCTLA, its board of directors, and/or its membership should be inferred by virtue of their publication in The Gavel. OCTLA Gavel Fall Colors Editor s Commentary Casey R. Johnson, esq. I m writing this column while contemporaneously packing for a trip back East. Although the trip will include some work in Baltimore, Maryland, the ultimate destination is New England to enjoy what is simply known as Fall Colors. I am truly excited about seeing, first hand, what I am told is one of the most magnificent displays nature has to offer. As a self-professed foodie, I m equally eager to eat my way through the northeast and sample the wonderful flavors and seafood available in that part of the country. Assuming the trip pans out as expected, you can count on plenty of photographs in next issue s Outside the Law feature. Normally, I am the type of traveler who likes to just get where I am going, so that I can then enjoy myself. This trip will challenge me, as I ll be staying in nine different hotel rooms in eight different states over the course of eleven nights. But I ve purposely scheduled an early stop in the itinerary that I had not planned on making, but which seems all the more relevant during these peculiar times Independence Hall in Philadelphia. How could I not seek out the place where the Declaration of Independence and the United States Constitution were signed? Although my head continues to tell me to drive straight on through to Connecticut, or head over to Manhattan for a Broadway show, my heart and soul are demanding that I stop and reflect on the struggles that our forefathers faced during the founding of our nation. While there are parts of our country s history about which none of us are proud, including, arguably, several episodes in the very recent past, one certainty that pervades any historical reflection or analysis is the importance placed by the Founders on a government with three independent branches that serve to check and balance one another. So why is it that so many citizens, including lawyers, have been so willing to sit idly by, while continuous cuts to funding the judiciary have begun to cripple the administration of justice? The current economic crisis is threatening, perhaps more so than ever before, to com - pletely debilitate the judiciary, an independent, co-equal branch of the government. Federal judges have recently taken to the press to warn of the harm that potential cuts will have in the doling out of justice if a new balance of cuts and tax increases cannot be agreed to in Washington, DC, before the end of the year. Here in California, our court system has already suffered a larger percentage cut than any other governmental department or agency (approaching 30% to date since 2007). And whether or not the Governor s initiative passes, further cuts are all but a certainty for the budget. With closures of civil courtrooms in most counties (and some county courthouses ceasing civil calendars altogether), it is almost unimaginable how further cuts will impact our already stressed out judicial system. Unfortunately, we will not have to wait much longer (Continued, see Editor, page 45) 5

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7 A Night to Celebrate Achievement and Share the Gift of Life November 17, 2012, will be a highlight of the year, as OCTLA hosts its Top Gun Awards Dinner and Charity Auction at the City National Grove of Anaheim. It's a night to celebrate landmark achievements in the courtroom and the media, and to join together in supporting the gift of life through organ donation. Celebrity appearances and performances, and our renowned silent and live auctions for charity will punctuate a gala dinner filled with great fare and legendary camaraderie. Top Gun Trial Lawyers of the Year OCTLA will be conferring three awards for 2012 Top Gun Trial Lawyers of the year. Douglas B. Vanderpool will be recognized as the Personal Injury Trial Lawyer of the Year for his work in a disputed red light intersection collision case that resulted in a verdict in excess of $985,000. Keith More will be awarded the Workers Compensation Trial Lawyer of the Year Award for work performed for his paraplegic client, for whom he secured a $4 million award in addition to a waiver of a $1.3 million workers compensation lien, based on a rarely utilized legal waiver argument. John C. Adams III will be honored as Insurance Bad Faith Trial Lawyer of the Year for his work securing a $6.5 million jury verdict on behalf of Monaco Jewelers, whose insurer denied a loss claim following a robbery of the store claiming it must have been an inside-job. The insurer settled for a confidential sum before the jury rendered a verdict on the bad faith/punitive damages phase of the trial. Young Gun Award Kevin G. Liebeck is this year s recipient of the Young Gun Award, conferred on an outstanding trial lawyer in practice 10 years President s View Douglas W. Schroeder, esq. or less. Mr. Liebeck has successfully tried several cases to verdict, most recently two challenging podiatric malpractice cases, overcoming strenuous defenses on liability and damages issues. Distinguished Achievement Award Daniel J. Callahan is receiving the 2012 Distinguished Achievement Award for his work on the Freedom Communications cases. From 2003 through 2011, Mr. Callahan spearheaded a series of cases that included a lengthy and complex trial against Freedom Communications (the parent company of the OC Register) that resolved in a settlement following two months of trial, after which Freedom declared bankruptcy. As head of the unsecured creditors committee, Dan obtained an assignment of rights from Freedom against its own officers and directors and secured a settlement from the director s and officer s insurer, for a total recovery exceeding $30 million. Consumer Awareness Award Investigative journalist Tony Saavedra is 7 being honored with the Consumer Awareness Award for a series of articles exposing dangerous practices in the approval process for medical devices. The articles, co-authored by Mr. Saavedra and Courtney Perkes, were published in June 2012 in the Orange County Register. Setting the scene against the backdrop of catastrophic injuries inflicted on women undergoing cancer treatment, Mr. Saavedra poignantly brought public attention to a seriously flawed and potentially lethal practice for marketing medical devices without premarket testing. Benefitting the Cause of Organ and Tissue Donation For 2012, our charitable partner is Donate Life OC, the education arm of OneLegacy which is the organ and tissue procurement organization serving seven Southern California counties, including Orange and Los Angeles. In April, OCTLA was the 10th Annual Presenting Sponsor of the Donate Life OC Run/Walk event, which drew over 11,000 participants to raise funds for organ donation. OCTLA will be supporting Donate Life OC s community outreach and education efforts focused on the importance of registering as an organ donor by donating 100 percent of all proceeds earned during the live and silent auctions at the Top Gun Awards dinner in November. By donating an item to this year s auction, you will quite literally be helping to give the gift of life. (Please go to for donation forms.) We ll be joined in this effort by celebrity performer Scott MacIntyre, the 2012 national spokesperson for Donate Life. Scott captivated the nation as the first blind finalist on American Idol. Visually (Continued, see President, page 43)

8 Editor s Note: An article appeared in the previous issue of The Gavel that discussed the recent California Supreme Court opinion in Brinker Restaurant Corp. v. Superior Court (2102) 53 Cal. 4th 1004 ( California Supreme Court KOs Employees on Breaks, Summer 2012, Vol. 15, No. 3). The Gavel received comments to the effect that the article did not present a balanced view of the opinion and failed to acknowledge those portions of the opinion that preserved and established significant employee rights and employer obligations with respect to meal and rest periods. The following article provides a different perspective on the opinion, which we hope will assist our readers in evaluating this important decision. Reprinted with permission of the State Bar of California and the California Labor & Employment Law Review. In Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 1 our Supreme Court confirmed that California law guaran- tee[s] meal periods and rest breaks intended to ameliorate the consequences of long hours. 2 Here are five takeaways from the opinion for California workers. Takeaway #1 Workers must be actually relieved of all duty by their employers for their meal periods. Workers must be free to leave the workplace and may use the meal period time for whatever purpose they desire. OCTLA Gavel Takeaways from Brinker for California Workers In-Depth Analysis Kimberly A. Kralowec, esq. In Brinker, the Supreme Court addressed the scope of an employer s obligation to provide meal periods under California law, and considered exactly what employers must do to comply with that requirement. Here is how the petition for review described this issue: Under the Labor Code ( and 512) and Industrial Welfare Commission (IWC) Wage Orders ( 11), must an employer actually relieve workers of all duty so they can take their statutorily-mandated meal periods, as held in Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2005)? Or may employers comply simply by making meal periods available, as held in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 165 Cal.App.4th 25 (Jul. 22, 2008)? 3 The Supreme Court agreed with the workers that an employer must actually relieve workers of all duty so they can take their statutorily mandated meal periods, as held 8 in 2005 in Cicairos. 4 In so holding, the court also cited two other worker-friendly decisions Jaimez and Dilts that interpreted the employer s duty in the same protective way. 5 Notably, the Brinker opinion does not so much as mention the main decisions relied on by the employer (and the Court of Appeal below), Brown v. Federal Express Corp. 6 and White v. Starbucks Corp., in analyzing the meal period requirement. 7 Brown and White tried to distinguish Cicairos and held that the employer need only offer meal breaks or make them available. Those courts relied on a dictionary definition of the word provide, which the Supreme Court conspicuously did not adopt in Brinker, holding instead that the word provide in Labor Code section 512 is shorthand for the requirement contemplated in subdivision 11 of most of the IWC s wage orders. 8 In sum, it is safe to say that for additional guidance after Brinker, lower courts should look to Cicairos, Jaimez, and Dilts, as For guidance, lower courts should look to Cicairos, Jaimez, and Dilts and not Brown or White Kimberly A. Kralowec is the principal of The Kralowec Law Group, a plaintiff-side class action firm handling wage and hour, antitrust, and consumer fraud litigation. Ms. Kralowec was lead appellate counsel for the workers in Brinker and argued the case before the California Supreme Court. She can be reached at kraloweclaw.com. Brinker construed those decisions, and not Brown or White. The Supreme Court did reject an additional part of the workers argument, based on a 2010 Supreme Court decision, Martinez v. Combs, 9 which interpreted the word employ as used in the Wage Orders. The Supreme Court held that the employer is not obligated to prohibit work during meal periods. 10 While the term employ is defined in the Wage Orders as to engage, suffer or permit to work, the court reasoned that the phrase [n]o employer shall (Continued, see Brinker, page 10)

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10 Brinker (continued from page 8) employ, which appears in the Wage Orders meal period provisions, is part of the definition of the trigger [of the meal period obligation], not of the obligation [itself]. 11 Put another way, if a worker is employed (that is, suffered or permitted to work) for a shift exceeding five hours, that worker is entitled to the thirty-minute meal period described in the Wage Orders. 12 This part of the holding is why many employers have expressed satisfaction with the Brinker opinion. The workers argued, in part, that employers were required to ensure that workers actually took their meal periods, not merely by relieving workers of all duty, but also by prohibiting work during meal periods. The court held employers need not police the workplace for this purpose 13 which is not something the workers argued was necessary to comply with the standard they advanced. Nonetheless, many employer-side interests have expressed relief that the court did not go that far. Still, the employer who sits back and takes no responsibility for complying with the meal period laws beyond making meal periods available does so at its peril. 14 Brinker holds that the employer must take the active step of afford[ing] an off-duty meal period, which means actually relieving an employee of all duty and relinquish[ing] control over their activities, without pressuring employees to perform their duties in ways that omit breaks, and without exerting coercion against the taking of, creating incentives to forego, or other wise encouraging the skipping of legally protected breaks. 15 Adopting a written policy that purportedly allows meal periods is not going to be enough. 16 What is required of the employer is to afford workers [b]ona fide relief from duty and the relinquishing of control over the workers activities. 17 Thinking about the Supreme Court s ruling another way, imagine a scale from zero to 10 as in Fig. 1 [above]. The employer-side interests argued that their compliance obligation was about a 0.5: adopt a policy allowing meal periods. The workers argued, under Martinez, that no employer shall employ means no employer shall suffer or permit work to occur during meal periods; call that a 9.5 on the compliance scale. The Supreme Court s holding is about a 7.5 that is, much closer to the workers argument than the employers. It places a significantly more onerous burden on the employer than did the Court of Appeal s opinion. Brinker thus preserves significant worker protections that the lower court s opinion, and the employer-side interests, would have stripped entirely away. Given where things stood after the Court of Appeal issued its (now-superseded) opinion in 2008, this is a major win for workers. Takeaway #2 Workers are entitled to a ten-minute rest break for every four hours worked or major fraction thereof. The Court of Appeal s superseded opinion in Brinker would have halved the number of rest breaks that workers would get during an ordinary workday. The Supreme Court adopted the workers position on rest break compliance, ruling as follows: Employees are entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on What this means as a practical matter is that 10-minute rest breaks accrue at the second, sixth, and tenth hours of work, rather than at the fourth and eighth hours, as the Court of Appeal erroneously held. The Supreme Court reached this conclusion by adopting the workers argument as to the meaning of the phrase ten (10) minutes net rest time per (4) hours or major fraction thereof. 19 As the workers pointed out, in longstanding IWC and DLSE parlance, major fraction of four hours means any time over two hours. 20 So, on an eight-hour shift, a worker s first ten-minute rest break accrues once the worker has completed two hours work and begun the third hour, and the second tenminute rest break accrues once the worker has completed six hours work and started the seventh hour. The rest breaks must then be scheduled, insofar as practicable in good faith, in the middle of each work period. 21 The Supreme Court rejected the employers construction of the Wage Orders, adopted by the Court of Appeal below, which would have meant that [a]n employee working a seven-hour shift... would be entitled to only 10 minutes rest in effect, a single rest break in an 8-hour day. 22 This again is an important win for workers. Takeaway #3 Employers may not require workers to push their lunch to the end of the workday. Instead, workers must be relieved of duty for lunch no later than the end of the fifth hour of work. The Supreme Court also addressed whether employers are required to relieve workers (Continued, see Brinker, page 38)

11 SOME OF OUR BEST WITNESSES ARE DUMMIES. BISNAR CHASE regularly performs demonstrative crash testing to prove vehicle defects involving roll-overs, roof crush, tire failures, 15-passenger vans, seat back failure, door latches, laminated glass, seat belt and restraint system failures. We welcome you to partner with BISNAR CHASE in major auto product liability/crashworthiness cases. Because your clients deserve the resources to win. One Newport Place / 1301 Dove Street, Suite 120 / Newport Beach, CA / BISNAR / 11

12 Defeating an ERISA Lien with the Statute of Limitations Consider this question: An ERISA plan paid $50,000 worth of medical bills for our client. We secured a tort recovery and set aside $50,000 in our trust fund to deal with a possible ERISA lien assertion. It has been 5 years. Nothing has been filed. When can we safely disburse the money? In our work dealing with ERISA lien assertions, we frequently receive inquiries of this nature. This article is intended to provide guidance for these situations. It is important to stress that waiting for the statute of limitations to expire is not a recommended strategy for dealing with lien assertions. The preferred approach is to address the lien assertion early on. In particular, the earlier one addresses the lien issue, the greater the likelihood for a favorable result. This is especially true if the lien issue is resolved prior to releasing the tortfeasor and taking receipt funds. 3 Nonetheless, many tort recoveries are in fact secured with the tortfeasor(s) being released prior to the resolution of a potential ERISA lien assertion. Thus, the statute of limitations inquiry becomes relevant. The question is simple What is the statute of limitations for an ERISA reimbursement claim? The answer, however, is rarely found with ease and certainty. The proper analysis required to determine the answer is a bit complicated. And, that analysis tends to produce results that lie in Roger M. Baron, Professor of Law at the University of South Dakota, is an expert on the area of ERISA reimbursement claims. He has published and lectured extensively on the topic. Prof. Baron may be contacted at Anthony P. Lamb, a third-year law student at the University of South Dakota, serves as Baron s Research Assistant and has assisted on ERISA matters as an ERISA Paralegal. Anthony may be contacted at In-Depth Analysis Prof. Roger M. Baron the gray areas as opposed to providing black and white determinations. ERISA and Statutes of Limitations (In General) The general topic of statutes of limitations as they arise in the context of ERISA litigation is broad, encompassing many scenarios. 4 For example, the limitations issue may arise in connection with the following situations: 1) action for penalties; 2) claim for benefits due under the ERISA plan; 3) equitable action to enforce plan provisions; Anthony P. Lamb 12 4) retaliation actions; and 5) claims against employers for delinquent contributions. 5 It should be noted that ERISA does contain at least one limitations provision in connection with actions for breach of a fiduciary duty. 6 This provision has never been seriously considered as being applicable to reimbursement or subrogation claims. 7 The focus of this article is restricted solely to the matter of ERISA reimbursement or subrogation claims. In that regard, it should be noted that there is no federal statute of limitations in ERISA or otherwise which applies to actions for reimbursement or subrogation. Limited Case Law We have found only three reported opinions from the federal courts of appeal dealing specifically with this issue. These opinions are from the Eighth, Ninth and Eleventh Circuits. Our analysis will be guided primarily by this very limited body of law. Of the three opinions, only one produces a result favorable for the ERISA participant or beneficiary. The other two opinions address the same question but produce a result favorable to the ERISA plan. First, we will provide a brief summary of each of these three cases. Admin. Comm. of Wal-Mart Stores, Inc. v. Soles ex rel. estate of Hollander, 336 F.3d 780, 781 (8th Cir. 2003) The ERISA Plan, asserting a lien of $48,837.99, was notified of a $100,000 tort recovery on January 16, It agreed to receive a partial payment of $10,000 on its lien at that time. Subsequently, the plan became aware of an additional tort recovery on April 8, Although offered payment of an additional $10,000 to resolve the lien, the Plan rejected

13 the offer and insisted on payment in full. The plan participant lived in South Carolina and the tort occurred in South Carolina. Litigation over the lien was instituted on March 2, 2002, in U.S. District Court in Arkansas, where the plan was administered. The ERISA Plan brought its 502(a) (3)(B) 8 claim for reimbursement. Since there is no federal statute of limitations for reimbursement claims, the Eighth Circuit followed the standard approach which is to borrow the most analogous state statute of limitations. 9 In the context of this litigation, there were two possible provisions which could have been applicable: the Arkansas three-year statute of limitations for actions founded on any contract or liability, express or implied liability or the Arkansas five-year statute of limitations for the enforcement of written obligations. 10 The trial court applied the threeyear statute of limitations and granted summary judgment for the defendant. 11 On appeal the ERISA Plan argued that the claim accrued on April 8, 2000, when it was notified of the second tort recovery and that the action was timely, having been filed within two years of when the cause of action accrued. The Eighth Circuit Court of Appeals rejected this argument, holding that claim accrued on January 16, 1997, when the ERISA Plan received notice of the 1st tort recovery and that, under either the three or five year statute of limitations, the claim is barred because more than five years have passed since this cause of action accrued. 12 As to the determination of when a claim accrues, this opinion invokes the discovery rule stating, Generally, this court applies the discovery rule to determine when a claim accrues. The discovery rule provides that a plaintiff s cause of action accrues when he discovers, or with due diligence should have discovered, the injury that is the basis of the litigation. 13 In summary, the 8th Circuit Soles decision borrowed the forum s (Arkansas ) statutes of limitations relating to contract actions, That analysis tends to produce results that lie in the gray areas as opposed to black and white holding that the ERISA Plan s claim for reimbursement was time-barred. Blue Cross & Blue Shield of Alabama v. Sanders, 138 F.3d 1347 (11th Cir. 1998) The ERISA plan paid $12, for medical bills related to an automobile accident in March, The tort action was filed in November, 1991, and a default judgment (Continued, see ERISA, page 14) 13

14 ERISA (continued from page 13) in the amount of $200,000 was entered against the tortfeasors. The judgment was paid (satisfied) in October, The ERISA Plan brought its 502(a)(3)(B) 14 claim for reimbursement in U.S. District Court for Alabama in April, 1996 some 3-1/2 years later. The trial court granted summary judgment for the ERISA Plan. 15 On appeal, the ERISA participants argued, inter alia, that suit was barred by Alabama s two-year statute of limitations relating to claims for wages and claims for discharge in retaliation for seeking worker s compensation. 16 The court s discussion of the statute of limitations issue is relatively brief, with the Court stating, ERISA does not specify a limitations period for a fiduciary's suit against a participant under 29 U.S.C. 1132(a)(3) to enforce a reimbursement provision of a plan. In an ERISA action with no congressionally mandated limitations period, the district court must define the essential nature of the ERISA action and apply the forum state's statute of limitations for the most closely analogous action. Byrd v. MacPapers, 961 F.2d 157, 159 (11th Cir.1992); see also Wilson v. Garcia, 471 U.S. 261, , 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985) (stating that when Congress has not established a time limitation for a federal cause of action, courts should adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so). 17 In seeking the most closely analogous cause of action and adopting the corresponding statute of limitations, the court said, We therefore look to Alabama law for the relevant limitations period. As a matter of first impression for this court, we hold that a fiduciary s action to enforce a reimbursement provision pursuant to 29 U.S.C. 1132(a)(3) is most closely analogous to a simple contract action brought under Alabama law. Accordingly, we apply Alabama s six-year statute of limitations for simple contract actions, see Ala.Code (9), and reject the [appellants ] proposed two-year limitations period. 18 In summary, the 11th Circuit s Sanders decision borrowed the forum s (Alabama s) statute of limitations for simple contract actions, holding that the ERISA Plan s claim for reimbursement was not time-barred. Wang Laboratories, Inc. v. Kagan, 992 F.2d 1126 (9th Cir. 2002) This ERISA Plan was headquartered in Massachusetts. The ERISA participant resided in California and suffered injuries in an automobile accident in California on July (Continued, see ERISA, page 46) 14

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16 California s Homeowner Bill of Rights Brings Transparency On January 1, 2013, the mortgage and foreclosure process in California will arguably be more fair and transparent according to Attorney General Kamala Harris, who practically authored the legislation, thanks to California s new Homeowner Bill of Rights (HBOR) (introduced as Senate Bill 900/Assembly Bill 278), which will become effective in the new year and will expire on January 1, 2018, unless the legislature extends or amends it. HBOR is an extension and enhancement of the existing (Perata) Mortgage Relief Bill (MRB) that took effect in 2008 under Senate Bill To fully understand why there was ever a need for the MRB and to fully understand why there is a current need for its extension and enhancement, the HBOR, it is important to understand the extraordinary threat we faced regarding the housing market at that time the MRB was enacted. The language of SB 1137 summarizes the threat as follows: California, as well as the nation, is facing an unprecedented threat to the economy and housing market due to increasing numbers of foreclosures caused by mortgage payment defaults. In 2007, more than 254,000 California households defaulted on their loans, and a total of more than 84,000 homes were lost to foreclosure. The United States Conference of Mayors reports that California cities may see a four billion dollar decline in property, sales, and transfer taxes as a result of the present housing crisis. Vincent D. Howard is the managing shareholder at Howard Law, P.C. in Costa Mesa. He focuses his practice on wrongful foreclosure, personal injury, and social security benefits. He has represented homeowners who have faced abusive foreclosures tactics since the meltdown of the housing market. Mr. Howard can be contacted at Nuts & Bolts Vincent D. Howard, esq. The language in the bill paints a pretty grim picture of what the housing market in California was like when the bill was enacted. Additional numbers and statistics from the Center for Responsible Lending provide greater detail about the crisis at that time. On average, more than 500 California families have lost their homes every day since the fourth quarter of 2007, and the data show few signs of a return to the pre-crisis housing market. California foreclosure activity remains elevated, with more than 30,000 completed foreclosures each quarter, compared to less than 3,500 foreclosures in the third quarter of In addition, large numbers of California homeowners continue to fall behind in their payments, and would benefit from more effective policies to prevent avoidable foreclosures. The intent of the MBR and even the HBOR was and is to stop the tidal wave of preventable foreclosures from happening by forcing lenders to adhere to the law and by encouraging lenders and servicers to reach out to homeowners and look for meaningful alternatives to foreclosure. 16 Perata Mortgage Relief Bill Since the HBOR is an extension and enhancement of the MRB, it is important to understand what the legislation requires. The MRB requires the following: Prior to filing a notice of default, lenders must contact borrowers to set up a meeting where the lenders and consumers will discuss potential ways to avoid foreclosure. Applies to loans made between January 1, 2003 and December 31, 2007, when most of the loans that are causing the problems we face today were made. Tenants will get notice (in six different languages) once a notice of sale has been posted on a property. The bill increases the current notice required to be given to residential tenants of foreclosed properties to 60 days prior to eviction. Locals can impose a $1,000-per-day fine on financial institutions that don t maintain vacant properties if problems are not fixed within 14 days. Homeowner Bill of Rights In spite of the MRB, foreclosures continued to rise and lenders were not encouraged to offer a more meaningful number of loan modifications or offer other alternatives to foreclosure. In fact, based on numbers reported, the number of foreclosures doubled after the enactment of the MRB. Because of the increase in the number of foreclosures it was necessary to come up with additional legislation to ensure that as part of the non-judicial foreclosure process, borrowers are considered for, and have a meaningful opportunity to obtain, available loss mitigation options. This wasn t accomplished under the MRB because we have (Continued, see Homeowner, page 44)

17 Police Officer Code 3 Liability On February 26, 2012, George Zimmerman, a neighborhood watch coordinator for the Sanford Police Department in Sanford, Florida, shot and killed 17-year old Trayvon Martin. George Zimmerman claimed self defense in an emergency situation, while many others claimed Trayvon Martin s death resulted from inappropriate racial motives. Regardless of the true circumstances (which hopefully will come to light through the legal process), the 17-year-old s death created a media frenzy and brought to the forefront a very serious issue law enforcement accountability for alleged wrongdoing. We, as civil litigation attorneys, are often asked by clients to address this same serious issue. Whether it be for improper use of deadly force (as alleged by Trayvon Martin s family), or for causing a motor vehicle collision while responding Code 3 (with lights and sirens activated), holding a law enforcement agency accountable can be a daunting task. This is particularly true considering the many statutory immunities afforded to law enforcement when responding to emergency situations. This article will analyze and discuss statutory authority and case law applicable to law enforcement liability for motor vehicle collisions that occur during an emergency or Code 3 response, and debunk any misconception that a police officer cannot be held liable in certain circumstances. California Tort Claims Act Initially, police officers and law enforcement agencies are government entities, and thus any pursuit of legal action requires compliance with the California Tort Claims Act, including the filing of a timely govern- Jonathan Dwork is an associate with Chambers, N0ronha & Kubota, specializing in personal injury litigation. He is a member of OCTLA s Board of Directors and can be reached at Nuts & Bolts Jonathan Dwork, esq. ment claim. (See generally California Government Code 900, et seq.) Statutory Law Regarding a public entity s liability for a motor vehicle collision, California Vehicle Code states the general rule that, A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment. However, as it pertains to police vehicles responding to an emergency, at first glance statutory law appears to provide absolute immunity. California Vehicle Code generally states that the driver of an authorized emergency vehicle is exempt from various portions of the Vehicle Code, including speed and right of way laws, under all of the following conditions: [1] the vehicle is being driven in response to an emergency call, [2] the driver of the vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to other drivers and pedestrians. 17 Limitations on Immunity of California Vehicle Code California courts have limited the application of ruling that (even though they are excused from following various rules of the road in responding Code 3) police officers responding to an emergency are required to drive with due care. In Torres v. City of Los Angeles, (1962) 58 Cal.2d 35, the California Supreme Court ruled that the driver of an emergency vehicle must exercise that degree of care which, under all the circumstances, would not impose upon others an unreasonable risk of harm. (Id. at 47.) The Supreme Court went on to state that: [Section 21055] exempts the employer of such a driver from liability for negligence attributable to his failure to comply with specified statutory provisions, but it does not in any manner purport to exempt the employer from liability due to negligence attributable to the driver s failure to maintain that standard of care imposed by the common law. (Emphasis added). (Id.) In requiring that emergency response vehicles maintain the common law standard of care, the Torres court went on to specifically note that the standard of conduct which is reasonable must take into consideration the unusual circumstances confronting the driver of an emergency vehicle, that is, the emergency which necessitates immediate action (Id. at 48.) Thus, the appropriate analysis is whether the police officer acted as a reasonably prudent officer in the same or similar emergency circumstances. To establish that a police officer created an unreasonable risk of harm, the California courts have upheld the ability of a plaintiff to introduce into evidence training bulletins (Continued, see Police, page 42)

18 Using Personal Coaches for Business Development One significant change in marketing strategies during the current economic downturn is the rise in the use of personal coaching services. So what is a personal coach? Why should you hire a personal coach? And if you want to hire a personal coach, what criteria should you use in selecting one? What Is a Personal Coach? Personal coaching for business development is aimed at helping the individual to be more successful in achieving his or her business development goals and objectives. A particular coach is usually hired because the client feels that the coach understands the issues at hand and can help meet the client s specific needs. Highly qualified personal coaches provide a broad range of services to their clients, including: Business Development (BizDev) Strategic Guidance A personal coach can help you establish realistic goals, develop a specific plan of action, and prepare a timeline for executing a BizDev plan. The coach will then work with you through the process as the action plans are implemented, in order to measure success and make any necessary adjustments. Prospecting and Sales Most attorneys do not have a background in professional sales. Therefore, a coach can help provide invaluable guidance on such issues as strategically targeting prospective clients, securing meetings, preparing presentations, and building effective refer- Kevin W. Brown, MBA, has worked with law firms for over 20 years. His firm, Kevin Brown Marketing & Consulting, is a full-service consulting firm that specializes in serving law firms and other professional services firms. He can be reached at or Nuts & Bolts Kevin W. Brown, mba ral relationships. In a nutshell, an effective personal coach teaches you how to bring in business. Image Building In many instances it becomes apparent from working with a personal coach that your firm s image is actually hurting your business development efforts. For example, your website may be very ineffective in portraying your firm s unique traits and capabilities. Many coaches work with marketing firms, graphic designers and website developers. As such, a personal coach can bring these third parties in to upgrade your branding efforts, update your marketing materials and do whatever else is needed to present you and your firm in the best light. Client Service Programs You should never overlook your current (and previous) client base when it comes to business development. Experienced personal coaches can teach you techniques for obtaining more business from existing clients, as well as assist in otherwise fostering client relationships. 18 Why the Need for a Personal Coach? Once a tool used primarily by marketingsavvy firms, personal coaching is now being used regularly by firms of all sizes and in all practice areas. So why is there an increase in the need for personal coaching? Whether a senior partner, a new partner or an associate, many attorneys are now being asked to bring in business. For many firms this is a relatively recent phenomenon. Just a few years ago, many firms avoided asking more than just a few of their attorneys to get involved with BizDev. But with more time being freed up (due to less billable hour work), management at many firms has started to request and even require their attorneys to create new business opportunities. With layoffs still occurring, BizDev is a fundamental way to build revenues and keep jobs. While the emphasis on personal BizDev has been a welcome change for some, others have objected. Many attorneys may be interested and some even inclined to develop new business, but virtually all attorneys have eventually found that they have a need for the basic tools to succeed in BizDev. Fortunately, there is a lot that can be done to help individual attorneys, as well as entire firms, to be more successful in BizDev. These programs include marketing plans, training workshops, and branding and positioning programs to help an individual or a firm to maximize its marketing investment. What to Look for in a Personal Coach Once you have decided to seek the assis- (Continued, see Coaches, page 37)

19 Do You Have a Settlement Brain Trust? In all likelihood, you, as your client s attorney, will be the most trusted person a plaintiff will know over the course of their case. With that trust comes a profound responsibility, and the best way to honor that trust and responsibility is to have a team of specialized advisors a Brain Trust available to your client so that their post-settlement experience is seamless and every need they might have related to their new normal has been planned for, in advance. This article is intended to provide an overview of potential members of a Brain Trust based on the elements that may arise in any given case, but is not intended to provide specific guidance or recommendations as to required Brain Trust members, which will vary according to the facts of each case. Studies show that during stress, the mind may be functioning at a 20% deficit. And the process of settling a case is highly stressful for a plaintiff. Settling a case when cognitively impaired compromises decision-making at a time when irrevocable decisions are being made. From the way the settlement is structured, to the various legal, tax and financial planning decisions the settlement triggers, there is much to be done and much to be carefully considered. A Brain Trust is invaluable to your client, as well as your business, and ideally will comprise the following trusted professionals: Settlement Consultant It is important to work with a consultant who truly understands your client s needs. Traci Kaas is a certified structured settlement consultant (CSSC) and president of Kaas Settlement Consulting in Irvine, CA. She is health and life licensed and a FINRA registered representative. Traci is also a member of the National Structured Settlements Trade Association and trained by the Sudden Money Institute. She can be reached at or Nuts & Bolts Traci Kaas, cssc There can be many pitfalls with working with a per case broker you do not have a relationship with. There may even be potential liability on your firm for choosing the wrong person. In my experience, many attorneys and even financial planners are undereducated and/or misinformed about exactly what a settlement consultant does. Some envision a broker who puts an annuity together, which is pretty harmless, and that is it. But making sure a client is best served requires considering many variables and options, and is limited only by the ingenuity of the professionals who create it. In your search for a trusted settlement consultant for your brain trust, there are two important questions to ask: Do they try to structure the entire net proceeds that your client is getting? Everybody wants their money and they want it now. And that also includes the claimant and the settlement consultant. And if the latter s only source of income is settlements, they just might be tempted to over-structure the client. But the settlement consultant s priority should always be 19 meeting the unique needs of the client. And if the client has a need to have only a certain amount structured, so be it. Believe me when I say that if that need is not heard and respected, the odds are good that the client will sell their annuity within a few years. Be sure your structure consultant asks questions or reviews a life care plan to really understand the client s needs. Does the settlement consultant know how to identify the possible loss of government benefits and possible future benefits? The settlement consultant should be able to see the red flags and help to identify current and future government benefits that need to be protected. If there are any, a trust attorney should be enlisted to assist with that protection. Should a trust be utilized, there should be additional language in the settlement documents allowing the structure to be commuted into a lump sum for most cases. This allows the trust to reimburse Medicaid or for the family to have funds available for estate taxes upon death. Remember that a structured settlement is income tax free, but not estate tax free. If the commutation rider is not inserted, there will inevitably be a tax bill, and the client is rightfully going to look at you for not having considered the option of a commutation rider. And this is not a case where you can go back and correct your mistake. The costfree option of commutation is offered only during the settlement of the case and must be in the release. Trust Attorney A trust attorney might be the most important professional in your Brain Trust. Protecting government benefits is a world unto itself. To protect your firm from future (Continued, see Brain Trust, page 40)

20 On Being a Lawyer: Counselor Ihave always favored the word lawyer, rather than attorney or attorney at law. Part of the appeal of lawyer is its evocative, old-fashioned feel, one that conjures courtrooms with ceiling fans and wood paneling presided over by judges with silver manes and wire-rimmed reading glasses. But, for me, it is also a word that hints at the hybrid roles we perform for our clients, one as attorney-at-law and the other as counselor-at-law. Our role as attorney-at-law is relatively straightforward, more easily defined. As attorneys, we are our clients advocates, identifying and then pursuing with a singlemindedness of purpose their rights to compensation. We are the tip of the spear, ready to vanquish all who would stand in our client s way. Indeed, we stand for those who literally and figuratively cannot, giving our considerable energies to their causes, working ourselves to exhaustion whenever necessary to see that justice is done. The boundaries of our role as counselor-atlaw are less well defined, and as variegated as our clients are individual. It is a role that has little to do with generating recoveries and income, nor with tactical considerations or the conduct of litigation. Yet it is every bit as important as anything we do for our clients as attorneys. Its hallmark is the exercise of our humanity, one that gleans closer to the needs, rather than the wants, of our clients. As attorneys, many things can be done on behalf of those we represent; as counselors, we question whether certain things should be done. Nowhere is our role as counselor more relevant than when considering a potential new client, or when talking to an existing Chris Mears has specialized in plaintiff s personal injury litigation for 29 years. He is a past president of the Orange County chapter of ABOTA, is a recipient of ABOTA s Plaintiff's Trial Lawyer of the Year, and has twice received OCTLA s Top Gun award. On Being a Lawyer Chris Mears, esq. client whose cause has become untenable. The decision of whether to take, or continue with, a case is typically straightforward, requiring little consideration of whether the case should go forward cases, for example, in which liability and damage are clear and compelling, or, conversely, where there is no liability and less damage. However, we have all had many conversations with potential clients, and perhaps more than a few existing clients, where their legal recourse is far less clear; or, as is too often the case, the injury or loss is grievous, but the likelihood of legal success is slim. Indeed, it is in our conversations with our clients who have suffered devastating loss, but have little chance of obtaining vindication, for whom we must summon the best and wisest of the counselor-at-law within us. We call upon the counselor within us when informing the husband whose wife is dying of cancer because of the quackery of an uninsured nutritionist that she, and he, do not have any effective legal recourse. It is the counselor who advises the woman who has been sexually assaulted by a hospital attendant that her assaulter s employer does not bear legal responsibility for her injuries. It is the counselor who must find words to explain to the family of a brain-damaged teenager that they will find no compensation from the uninsured driver of the car that robbed an entire family of their life s joy. While there are many compensations to our work as attorneys-at-law, one of our highest callings is realized when we are called upon to act as counselors-at-law, a role that summons far more our reserves of wisdom and maturity as men and women than it does our legal acumen as attorneys. Our work as lawyers inherently involves working with our clients at the intersection of their legal and personal lives, a place as complicated, volatile, and satisfying as the human beings we represent. I have always favored the word lawyer, a word full of meaning and purpose. OCTLA s 50 th ANNIVERSARY January 26, 2013 Join the celebration at our annual Installation of Officers & Judicial Awards Program with a Special Tribute to the Past Presidents of OCTLA. Plan to join us for this special occasion. Event sponsorships are available at or call

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