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1 OCTLA THE GAVEL A QUARTERLY PUBLICATION of the Orange County Trial Lawyers Association Nuts & Bolts victim versus felon search engine optimization invisible injury the art of losing lawyers behaving badly OCTLA 2011 OFFICERS AND BOARD OF DIRECTORS In-Depth Analysis signing away all your rights: not always judgment day: recovering pre- and post-judgment interest JUDICIAL EXCELLENCE AWARD RECIPIENT HONORABLE KIM DUNNING VOLUME 14, NUMBER 1 WINTER 2011

2 photography digital trials graphics video services For a complete list of services go to What OCTLA Clients/Friends Are Saying Ex ecutivepresentations is pro ofessional, responsive and completely committed to the trial attorney. Alan C. Brown, 2009 OCTLA President Executive Pre esentations is the best I know at courtroom graphics. Their work is amazing. Keith P. Moore, 2008 OCTLA President EP s precise e visual exhibits helped us tell our client s story and win at trial. H. Shaina Colover, 2009 OCTLA Board of Directors With Ex xecutive Presentations, a picture is worth a million words. Casey R. Johnson, 2009 OCTLA Treasurer A Division of Executive Presentations s Working together to help lawyers succeed! tel: ww. fax:

3 The GAVEL Volume 14, Number 1, Winter 2011 OCTLA OFFICERS President Yoshiaki C. Kubota President-Elect Douglas W. Schroeder st Vice President Scott B. Cooper nd Vice President Casey R. Johnson rd Vice President Ted B. Wacker Secretary Vincent D. Howard Treasurer H. Shaina Colover Parliamentarian Geraldine Ly BOARD OF DIRECTORS Melinda S. Bell Gregory Brown Brent W. Caldwell Cynthia A. Craig Jonathan Dwork Jerry N. Gans Robert B. Gibson Kevin G. Liebeck B. James Pantone Christopher E. Purcell Solange E. Ritchie Sarah C. Serpa Jeffrey Sheldon Adina T. Stern Kimberly A. Valentine Dieter Zacher Immediate Past President Anne Andrews Executive Director Janet Thornton Editor Adina T. Stern Advertising Janet Thornton Graphic Designer Primary Design Printing The Wolf Printing Co Web Site The Gavel is published quarterly at a subscription rate of $50 per year. Periodicals postage paid at Lake Forest, California. Copyright 2011 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, Alicia Parkway, #403, Laguna Hills, CA OCTLA Gavel Our 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: Retrospection and Resolutions Adina T. Stern, ESQ. 7 President s View: Taking No Challenge Alone Yoshiaki Kubota, ESQ. 9 Outgoing President: Reflections on a Successful Year Anne Andrews, ESQ. special feature 6 Letters from our Readers regular features 18 Judicial Profile: Honorable Kim G. Dunning 19 OCTLA New Members 26 OCTLA Photo Library 39 OCTLA Tidbits & Announcements 42 OCTLA Foundation Club 48 OCTLA Verdicts & Settlements 53 OCTLA Calendar of Events 54 Advertisers Index in-depth analysis 10 Signing Away All Your Rights: Not Always Casey R. Johnson, ESQ. 22 Judgment Day: Recovering Pre- and Post-Judgment Interest Gregory G. Brown, ESQ. nuts & bolts 14 Victim versus Felon: Suing the Criminal Defendant Lawrence A. Strid, ESQ. 20 An Introduction to Search Engine Optimization Arnold Hernandez, ESQ. 21 The Invisible Injury Credit Damage Georg Finder 23 On Being a Lawyer: The Art of Losing Chris Mears, ESQ. 24 Trial Tips: Lawyers Behaving Badly Hon. David Brickner (Ret.) The GAVEL is a publication of: ORANGE COUNTY TRIAL LAWYERS ASSOCIATION Alicia Parkway #403 Laguna Hills, CA PHONE FAX Editor: Adina T. Stern Executive Director: Janet Thornton Disclaimer: OCTLA does not endorse or recommend other than those officially endorsed by OCTLA any individual or company that it mentions in its magazine. Any business conducted is between the member and the individual or company. 3

4 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 25 years of practice and experience in Southern California Toll Free Serving the Nevada, California & Oregon area since 1976 EXPERT WITNESS Machine-Related Injury Chandler & Associates Retain a specialist with hands-on experience designing and building industrial machinery. 30 years experience in the design, manufacture and operation of industrial machinery & equipment: punch press, sheet metal, metalworking, woodworking, hydraulic machinery, packaging, conveyors, plastics machinery, power tools. Dick Chandler tel fax Advertisers Index by Services Offered Annuities and Structured Settlements Structured Financial Associates Patrick Farber Settlements Broker The Calderon Settlements Group Millennium Settlements Appeals and Writs Donna Bader Court Reporting Services Jilio-Ryan Hunter & Olsen, Inc M&M Court Reporters, Inc Credit Georg Finder Employment and Wrongful Discharge Law Law Offices of Terry K. Davis Law Offices of Charles Pernice Exhibits and Presentation Services Executive Presentations Court Graphix CSC Anatomy Arts Persuasium Consulting Expert Services Chandler & Associates DeVinney & Dinneen Kars Advanced Materials, Inc OHM Corp Traffic Engineer Wm. Kunzman Family/Adoption/Divorce Legal Services Law Offices of Brenda McCune Adoption Choices Law Center IME/DME Observation Advantage Representatives Insurance Aragon-Haas Insurance Legal Associations Public Law Center Litigation Support Services Prolumina Adheya Legal Support Services Malpractice Legal Services Joel M. Pores Marketing Services Berbay Corp Kevin Brown Legal Marketing Mediators & Arbitrators Thomas D. Weaver Judicate West JAMS The Resolution Experts ADR Services, Inc Judicial Dispute Resolution Medical Services Coastline Podiatry, Dr. Pete Thomas Plaintiff Legal Services Bisnar Chase Consumer Attorneys LLP Klein & Wilson Hodes Milman LLP Howard Nassiri PC Workers Comp. Legal Services Thomas F. Martin Gary E. Skawin

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 that 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. Retrospection and Resolutions S pring may be the season associated Editor s Commentary with physical renewal, but Winter is the time for intellectual renewal. It is a time for retrospection and resolutions. This is particularly true for lawyers. Practicing law in January is challenging. The statutes and rules we take for granted all year long are suddenly suspect. Each code section we cite needs to be reviewed, each deadline double checked. January is a time when lawyers must reexamine everything they do as if they were doing it for the first time. We need to cast off our assumptions and approach each issue with a critical eye. This edition of The Gavel embraces the concepts of retrospection and resolutions. Adina T. Stern, esq. The art of critical thinking is the subject of Casey Johnson s article on liability waivers. Just because our client signed a waiver, it does not mean they have signed away all their rights. January is also a good time to review our checklists and forms. If you are looking for items of damage in your case, consider loss of credit reputation. How often do our clients injuries start a chain reaction that ultimately damages their credit? Georg Finder s article on credit damage addresses this issue. Similarly, while you are adding up your damages, you may find Greg Brown s article on pre-judgment and post-judgment interest helpful. While charting our path for the coming New Year, we look back on our successes and failures. In Chris Mears second installment of On Being a Lawyer, he discusses how lawyers can learn from their losses, both personally and professionally. As we look to the New Year we need to remember that without challenges, personal or professional, we cannot grow as people or lawyers. Lawrence Strid keeps us from making the mistake of pursuing a case which may never yield pecuniary reward in his article discussing the right way and wrong way to pursue the criminal defendant. Our photographic retrospectives in this edition of The Gavel feature photos from OCTLA s busiest time of year, including Fall Dinner Programs, OCTLA s Golf Tournament, the OCTLA Holiday Luncheon, the Top Gun Awards and OCTLA s participation at the Buddy Walk. If you missed any of these events, resolve to participate more next year. Whether you are interested in networking, learning, or helping the community, OCTLA has something to offer. This time of year we also often see a changing of the guard. This month California will have new leaders, including a new governor. Similarly, OCTLA will install a new board this month, and Yoshi Kubota will take the reins from Anne Andrews as OCTLA s president. (Continued, see Editor, page 52) 5

6 Dear Gavel: COMMENTS FROM OUR READERS Dear Gavel: I read with interest your recent article in the OCTLA Gavel ( Is Your Settlement Really Enforceable?.) As you suggested in your article, using stipulated judgments as part of a structured settlement has been a valuable method of settlement in cases where the defendant lacks the resources to make a lump-sum settlement. Ever since the opinion in the Greentree Financial Group case was issued, I have used several times a reverse approach to resolving cases as structured settlements involving stipulated judgments. Instead of relying upon a liquidated damages provision ( hammer clause ), I have used a mercy clause. With that latter approach, the defendant stipulates to judgment in a certain amount (e.g., $100,000.) Defendant is aware that in the event of default in the payments, the judgment will be filed in the amount agreed upon. However, if the defendant makes timely payments without default to a reasonable threshold level (e.g., $80,000), the balance of payments will be forgiven and a request for dismissal with prejudice will be filed. This approach avoids resorting to any penalty as part of the settlement. Often the parties agree that with respect to the mercy clause, time is of the essence of the agreement. If the defendant misses a payment, it loses the benefit of the forgiveness provision of the agreement. The default can be cured if the late payment is made up within a stated grace period, albeit the defendant has lost the benefit of the mercy clause and owes the entire amount stipulated to. Complete breach does not occur until the default remains uncured during the grace period. (Sometimes the parties may agree to two grace periods one to preserve the mercy clause [e.g., five days] and a longer grace period to prevent complete default [e.g., 10 days].) If complete default occurs, the stipulated judgment is filed. I suppose I should add the caveat that my approach has not yet been tested by the Court of Appeal. But, in theory, a mercy clause should work as long as the forgiveness amount is in reasonable proportion to the amount of the stipulated judgment. If the forgiveness amount is greatly disproportional to the stipulated judgment, the danger arises that the agreement will be viewed as a sham to get around a prohibited liquidated damages provision. Yours truly, David C. Velasquez Judge of the Superior Court Dear Gavel: Just a note to say that your Gavel article On Being a Lawyer in the Fall 2010 issue is one of the best written pieces I have had the pleasure of reading (and I ve read a lot, as a former editor of The Gavel myself). Superb job of distilling the essence into a meaningful and inspiring reminder for all of us! Tom Weaver Dear Gavel: Am I the only person in the world that did not know about Justice Cantil-Sakauye s excellent decision in King v. Willmett (2010) 187 Cal.App,4th 313 (review granted) regarding the collateral source rule? I find it interesting that the Supreme Court is going to review a prior decision of the current Chief Justice. I also find it interesting that the plaintiff in King is, I believe, a supervising attorney for Farmers. It appears the Supreme Court has stayed further proceedings in King and Yanez [Yanez v. Soma Environmental Engineering, Inc. (2010) 185 Cal.App.4th 1313], pending its review of Howell [Howell v. Hamilton Meats & Provisions, Inc., (review granted March 10, 2010, previously published at (2009) 179 Cal.App.4th 686)]. All of this is a product of all the hard work done by others in fighting the good fight against Hanif [Hanif v. Housing Authority (1988) 200 Cal.App.3d 635] and Nishihama [Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298]. A. Jay Norton 6

7 Taking No Challenge Alone In 2007 the Orange County Trial Lawyers officially adopted the motto TAKE NO CHALLENGE ALONE. This motto appears on its website, list serve and other OCTLA literature. As OCTLA installs its 47th Board of Directors, the TAKE NO CHALLENGE ALONE motto rings as true today as it did when it was adopted. But this motto merely puts into words what this organization has practiced for 47 years. OCTLA represents those lawyers who are engaged in the practice of advocating for people (consumers) who were injured as a result of a wrongful act. These lawyers represent clients, who usually cannot hire an hourly attorney against large corporations who spend millions of dollars in legal fees. More importantly, these lawyers risk their own personal money, mortgaging their bank accounts and homes, to represent these clients in pursuit of justice. Yet, these same lawyers, who have so much to risk, are a selfless group of people. Every year, the OCTLA has a Past Presidents Dinner where the past presidents are honored and thanked for their services. During the dinner, some of the past presidents impart wisdom derived from their year as president. The most common theme the past presidents discuss is the continued generosity shown by the organization s board and members who share and exchange ideas and information. The past presidents have expressed great thanks to the Board for maintaining these efforts. President s View Yoshiaki Kubota esq. becoming part of our monthly educational panels. Additionally, in 2011, our organization will unveil its new website, with an improved listserve, online registration and better networking capabilities. Finally, The Gavel will continue to print articles and essays that address current and relevant legal issues. We make this promise to our members: if you have a challenge, you will not have to take that challenge alone. You can call upon this organization and it will stand by your side. In exchange, we ask our past presidents, our Board, and all of our members at large to be equally committed to the idea that we shall TAKE NO CHALLENGE ALONE. We stand together as a united organization that has strength in numbers. Each of us works with one another, so no member of this organization will ever have to take a challenge alone. We ask that each of us demonstrates that the idea of TAKE NO CHALLENGE ALONE is alive and well, by attending the monthly programs, by sharing information with our brothers and sisters, by mentoring young members, by recruiting new members, and by acknowledging each other in the halls of the court. Wear the badge proudly that you are a TRIAL LAWYER and an OCTLA member. Our organization is committed to the idea that each of its members shall TAKE NO CHALLENGE ALONE. During the 2011 year, this organization will respectfully call upon its past presidents and most learned members to share their learned trial skills and knowledge with all our members, by 2011 Officers & Board of Directors Top Row: Chris Purcell, Jeffrey Sheldon, Kevin Liebeck, Gregory Brown, Jonathan Dwork, Brent Caldwell, Dieter Zacher, Keith More Middle Row: Alan Brown, Geraldine Ly, Ted Wacker, Cynthia Craig, Melinda Bell, Adina Stern, Sarah Serpa, Kim Valentine, James Pantone, Vincent Howard Seated: Casey Johnson, Douglas Schroeder, Yoshi Kubota, Anne Andrews, Scott Cooper Not Present: Jerry Gans, Solange Ritchie, Robert Gibson, Shaina Colover 7

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9 Reflections on a Successful Year This is the time of the year when your outgoing president reports and reflects on all the year s challenges and successes. We have had such a terrific year and I want to share some of the details. We started out the year with the Installation of our officers and board of directors at the Island Hotel in Newport Beach in January, with a special presentation of the Judicial Excellence Award to Justice Eileen Moore. OCTLA also hosted two Lunch and Learn programs at the Orange County Courthouse and ten interesting and informative MCLE programs in 2010 with an outstanding average attendance of 125 each month! Our programs featured up-to-the-minute information on such topics as Tort & Trial, Litigating Small Cases on a Shoestring Budget, Examining Experts, Handling & Resolving Liens and Medicare Set-asides, Minor s Compromises, Jury Selection, Opening and Closing Arguments as well as our annual Judges & Mediators Evaluation Program. Lobby Day brought out a record number of Orange County trial lawyers to lobby for bills and meet with legislators to show support for topics of interest to our membership. Many of our members distinguished themselves at the well-attended reception at Vallejo s restaurant where they mingled with prominent legislators and leaders of other TLAs from around the state. Our Columbus Day Golf tournament had a full field and was a lot of fun this year with a tropical twist and a beautiful warm day at El Niguel Country Club. The annual Top Gun Awards Program was held at The Grove of Anaheim this year, which provided a wonderful setting for our worthy award winners: Chris Mears, John Girardi, Jennifer Keller and Byron Rabin. Outgoing President Anne Andrews, esq. The live and silent auction portion of the evening brought in just under $40,000 for the Knots of Love Charity and certainly Keith More, our live auctioneer, was among those who made the live auction successful, fun and amusing. This year also featured fun social events such as Kentucky Derby Night, the Nordstrom Fashion Show, the annual Bench and Bar Softball Game and Family Picnic, and our Holiday Luncheon. The softball tournament is always the talk of the town for weeks afterward. The judges have won 3 out of 4 years so next year will be especially fun to see if we can make a comeback. OCTLA proudly supported the following organizations in 2010: Community Courts Foundation Constitutional Rights Foundation Consumer Attorneys of California Down Syndrome Association of Orange County Knots of Love Public Law Center A look back at the year would not be complete without thanks to our loyal supporters 9 and the sponsors of our monthly MCLE and dinner programs and social events this past year. (See p. 25.) Each of our events this year was a huge success in great part to our fabulous sponsors and supportive members. As for our challenges, it was an election year and I can tell you the trial lawyers of Orange County worked incredibly hard on campaigns for candidates who support consumer rights and access to the justice system. They participated in phone banks, held fundraisers, walked precincts and put up signs and were generally recognized statewide for the huge effort involved. It was a successful election!!! Candidates sympathetic to our issues were swept into office. I have often thought about how fortunate our clients are to have leaders in the consumer attorney community who unselfishly work year after year on these issues to protect their rights in Sacramento. I want to thank this year s extraordinary Board who made this year such a success. Many of us attended the COAC convention to witness the installation of OCTLA past President, John Montevideo, as the new president of the state wide organization. I was honored with the very prestigious TLA President of the Year award which was truly a tribute to all the dedicated members of this organization who have made OCTLA a successful and rewarding place for us to practice, network and learn from each other. As seasons change so does our executive committee and regular board. On January 15 our new President, Yoshi Kubota, and the 2011 Board of Directors will be sworn in at the Balboa Bay Club in Newport Beach. I am thrilled that the Honorable Kim Dunning will receive the Judicial Excellence Award. As we all know she is very deserving. It will be a fabulous (Continued, see Reflections, page 37)

10 Many attorneys are approached by potential clients who suffered a significant injury during an organized event or activity which required they sign a waiver or release as a condition of participation. When confronted with a release signed by the client, most attorneys worry about the validity of their client s case because of the likelihood of an express assumption of risk defense. However, to properly assess the case any such purported release must be closely examined to evaluate its legal effectiveness. What Does It Really Say? The starting point in evaluating the validity of a release is looking at the language itself. For a release exculpating a tortfeasor from liability to be valid and enforceable, it must be clear, unambiguous, and explicit in expressing the intent of the parties. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.) An ambiguity exists when a party can identify an alternative, semantically reasonable candidate of meaning of a writing. (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) If an ambiguity exists as to the scope of the release, it should be construed against the drafter. (See e.g. Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, See also Civil Code section 1654.) The intent and effect of the release must be comprehensible to an ordinary person untrained in the law. (Ferrell v. Southern OCTLA Gavel Signing Away All Your Rights? Not Always Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 319.) No magic language (including the word negligence ) is required for an enforceable release, but it must unequivocally notify the releasor that it applies to the releasee s misconduct. (See e.g. Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62, ) A high degree of clarity and specificity is required for California courts to allow a release to relieve a party from liability for its own negligence (as opposed to the releasor s own negligence.) (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488.) In Cohen, plaintiff fell off of her horse and was injured during a guided horse trail ride. (Id. at 1480.) The trial court granted summary judgment in favor of the defendant, finding that the release signed by the plaintiff constituted an express waiver of liability. (Id.) Because the court found a waiver of liability, it did not reach the issue of assumption of the risk. (Id.) The release contained the word negligence only one 10 time (referring to the participant/releasor) and then stated: Therefore, I assume full responsibility for myself, including my minor children, for bodily injury, death and loss of personal property and expenses thereof as a result of those inherent risks and dangers and of my negligence in participating in this activity. (Id. at p ) The Court of Appeal reversed the trial court s ruling, finding the release was invalid and summary judgment was not supported by the doctrine of primary assumption of the risk. (Cohen v. Five Brooks Stable, supra, 159 Cal.App.4th at pp and 1499.) In so holding, the court noted: [n]othing in the Release clearly, unambiguously, and explicitly indicates that it applies to risks and dangers attributable to respondent s negligence or that of an employee that may not be inherent in supervised recreational trail riding. Nor The intent of the release must be comprehensible to an ordinary person untrained in the law. Casey R. Johnson is a former editor of The Gavel and an attorney at Aitken*Aitken*Cohn in Santa Ana, specializing in personal injury and insurance bad faith litigation. He can be reached at aitkenlaw.com. In-Depth Analysis Casey R. Johnson, esq. [did it extend generally to the use of defendant s] facilities. (Id. at p. 1489, original italics.) A release found to extend generally to the use of a defendant s facilities was upheld in Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, in which a health club member sustained injury while moving a television set. In Benedek the health club s membership application contained language stating that the member expressly waives any claim of liability for personal/bodily injuries or damages which occur to any [member] while on the [defendant s] premises, whether using

11 exercise equipment or not. (Id. at p. 1354, underscoring omitted.) The Benedek court found this language clearly and unambiguously released the defendant from any liability for injuries occurring on the defendant s premises. (Id. at p ) In Sanchez v. Bally s Total Fitness Corp., supra, 68 Cal.App.4th 62, the court similarly upheld summary judgment for the defendant and upheld the enforceability of a release in a health club membership application. In Sanchez, the plaintiff was injured when she slipped on an exercise mat in a slide aerobics class. The language at issue in Sanchez stated: Accidents/Injury: The member agrees that all exercises and use of the fitness centers are undertaken by the member at the sole risk of the member, and that the 11 fitness center shall not be liable for any claims for injuries or damages whatsoever to person or property of the member or of a guest of a member arising out of or connected with the use of the fitness center. [M]ember agrees to indemnify and to hold the center and its employees harmless from all claims by or liability to member or member s guest, except for the claims arising out of the center s knowingly failing to correct a dangerous situation brought to its attention. (Id. at p. 68.) As with Benedek, the court found the release language clear, explicit and comprehensible and therefore enforceable. (Sanchez v. Bally s Total Fitness Corp., supra, 68 Cal.App.4th at p. 69.) In Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, however, the court found that a health club s release language did not release it from its own negligence. (Id. at pp and 1293.) The release language analyzed by the Zipusch court stated: [Y]ou understand and voluntarily accept this risk [the inherent risk of using an exercise facility] and agree that LA Workout will not be liable for injury from the negligence or other acts of anyone else using LA Workout. (Id. at 1289, fn. 21.) The court reversed the summary judgment in favor of the defendant, finding the release language ambiguous and, therefore, not a valid release. Noting that the subject language did not unambiguously release LA Workout from its own negligence, the court opined that a reasonable, if not better interpretation of the release language was that it applied only to the negligence of anyone else using LA Workout. (Id. at pp and 1293.) Similarly, in Leon v. Family Fitness Center (No. 107), Inc. (1998) 61 Cal.App.4th 1227, a general release was found not to exculpate the defendant health club owner from the plaintiff s claim for injuries sus- (Continued, see Rights, page 12)

12 Rights (continued from page 11) tained when a sauna bench collapsed due to the health club s alleged negligence. (Id. at pp and 1235.) In addition to criticizing the conspicuousness and size of the release language (as discussed infra), the court reversed summary judgment in favor of the defendant health club because the purpose of the release related to participating in sports or exercise rather than from merely reclining on the facility s furniture. (Id. at p ) The scope of release language has also been carefully analyzed in the context of scuba diving. Recently, in Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, the court reversed the trial court s ruling granting summary judgment in favor of the defendant in a wrongful death matter arising out of a scuba diving incident in which the plaintiff ran out OCTLA Gavel of air. (Id. at pp ) The release s title was boldfaced, underlined and in larger sized font. It said: Equipment rental agreement, liability release and assumption of risk of scuba and snorkel gear for boat dives or multiple day rentals. Despite the broad language contained in the release following the title (i.e. shall not be held liable or responsible in any way for any injury [or] death as a result of the negligence of any party ), the court held that the exculpatory language was limited to boat dives or multiple day rentals (neither of which applied to the facts of the case.) (Id. at pp ) In the context of automobile racing, the court in Celli v. Sports Car Club, Inc., supra, 29 Cal.App.3d 511, found a release provision on a pit pass unenforceable. The language purported to release defendants from liability for injuries resulting from any accident or other occurrence. The provision did not explicitly state that the defendants were released from liability for injuries caused by their own active negligence. A different result occurred in Nat. & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, where the court precluded recovery for the plaintiff, an experienced race car driver, based on language in the release that was unlimited in scope and that released defendant and others from any and all claims and liability arising out of ordinary negligence of releasees or any other participant which causes the undersigned injury, death, damages or property damage. (Id. at pp ) While by no means an exhaustive list or set of examples, these cases provide a sampling of the nuances in language that can render a release unenforceable. They demonstrate the clarity required for a written agreement to validly release a (Continued, see Rights, page 38) 12

13 DO YOU KNOW THESE GUYS? FORD AND GENERAL MOTORS DO. We welcome you to partner with BISNAR CHASE in major auto product liability/crashworthiness cases. We routinely perform demonstrative crash testing to prove vehicle defects involving roll-overs, roof crush, 15-passenger vans, tire failures, and seat belt and restraint system failures. Because your clients deserve the resources to win. One Newport Beach / 1301 Dove St., suite 120 / Newport Beach, CA / (949) / auto-defect-attorneys.com 13

14 Most attorneys who practice personal injury will, at some point, encounter a personal injury claim based on an incident that triggers a concurrent criminal prosecution of the potential defendant. Most commonly, both a potential civil claim and a pending criminal prosecution arise from assault and battery, driving under the influence (DUI), and sexual assault. To successfully conclude such a case, the civil practitioner must be aware of how the criminal proceedings will affect the civil case, for better or worse. Some preliminary asset investigation of the defendant is required before commencing a civil claim, even if the defendant appears to be covered by an auto insurance policy (for the DUI defendant) or a homeowner s or renter s insurance policy (for the intentional tort defendant.) Many insurance carriers will decline coverage for their insured if an intentional act gave rise to the claim, or will only defend the claim with an express reservation of rights (discussed further as explained below.) Timing: Taking the Criminal Disposition into Account In my experience, unless there is a statute of limitations problem, it is far more advantageous to put off filing the civil action until OCTLA Gavel Victim v. Felon: Suing the Criminal Defendant the criminal case is concluded by change of plea or trial. There are distinct disadvantages in filing suit or putting the defendant on notice of a pending civil claim while the criminal case is still on-going. The progress Lawrence A. Strid, Law Offices of Lawrence A. Strid in Irvine, practices personal injury and business litigation. He can be reached at In-Depth Analysis Lawrence A. Strid, esq. of the criminal prosecution can usually be monitored by periodically checking the applicable court s website, and/or by having your client, as the victim of the crime, contact the district attorney s offices for updates. The advantages of deferring suit and putting the defendant on premature notice of the civil claim are: 1. The Privilege Against Self-Incrimination Becomes Moot: Attempts to depose the criminal defendant or serve him/her with interrogatories or other written discovery are going to run right into the privilege against self-incrimination (U.S. Const., 5th Amend., Cal. Const., art. I, 15), with some zealous civil defense attorneys objecting to just about everything that could be asked of or be disclosed by their client. (See Evid. Code, 940.) As long as the defendant witness believes a disclosure could implicate them in criminal activity, they 14 may assert the privilege. (Kastigar v. United States (1972) 406 U.S. 441, 444.) Although the civil defendant who asserts the privilege against self-incrimination may risk evidentiary sanctions (such as the exclusion of testimony) for depriving the plaintiff of important evidence, (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, ) in the face of being criminally prosecuted this risk may mean little or nothing to certain civil defendants. To avoid this consequence, the civil defendant may try and stay the civil proceedings until the criminal case is resolved (see Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690) or alternatively, the court could grant immunity against use of their testimony or evidence in any collateral criminal prosecution. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, ) It is generally far better for a civil plaintiff to have the option of conducting unfettered discovery, by deferring the filing of a civil action until the criminal prosecution is concluded. 2. The Claim of Bias Can Be Avoided: An astute criminal defense attorney can turn a plaintiff/ victim s anticipated lawsuit into a major bias argument if a civil claim or lawsuit is made known to the criminal defendant. The pending personal injury claim or It is far more advantageous to put off filing the civil action until the criminal case is concluded action will give the criminal defense attorney the opportunity to claim the victim s testimony at a preliminary hearing or trial is being motivated by money. This may be a powerful argument for the criminal defendant, especially if a potential conviction turns on the credibility of the victim s testimony.

15 3. Civil Discovery Aids the Criminal Defendant: If the civil case has actually been filed while the criminal case is pending, the criminal defendant will be able to utilize the plethora of civil discovery tools to aid in his criminal defense that would not otherwise be available in the criminal discovery process. Depositions, subpoenas of custodians of records for consumer-related documentation, interrogatories, requests for productions, a request for a statement of damages, and requests for admissions can all provide the criminal defendant with evidence or information that may make a more favorable disposition or even potential dismissal of the criminal case possible. None of these discovery tools are available in the criminal law context. 4. The Odds of a Disposition Favorable to the Civil Action: Criminal defendants, especially if they are represented by counsel, are likely to be far more reluctant to change their plea in the criminal case if they are aware of a civil action or claim pending in the wings. Such a defendant is more prone to insist on only entering a plea of nolo contendere (as opposed to guilty) or risk a trial. Fortunately, in some jurisdictions (notably Orange County) the district attorney s offices may insist on a guilty plea if the victim of the crime has sustained physical injury during the course of the crime. Because the ultimate disposition of the criminal case may produce collateral advantages for the civil plaintiff, it is not wise to alert the defendant to the imminent prospects of the civil claim. This may provide the defendant with an incentive to broker a deal in the criminal court that might not help further a later civil claim. Pre-suit Discovery and Investigation Pending the Criminal Prosecution Even though it is preferable for the claimant to lie low pending the change of plea or trial in the criminal prosecution, the attorney for such a client should still conduct some preliminary investigation. Counsel should obtain the police report regarding the incident whenever possible. It is usually easy to secure a traffic collision report, even if the responsible party was charged with DUI. When there is a pending criminal investigation into a non-vehicular incident, however, many police agencies will resist producing a police report because of the official information privileges set forth in Government Code section 6254(f)(k) and Evidence Code section In such instances, if a police incident report is produced, certain information pertinent to the perpetrator, like a name and address, may be redacted. If the perpetrator is a juvenile, a petition to the Juvenile Court will be required to obtain any law enforcement or juvenile court proceeding information. (Welf. & Inst. Code, 827, Gov. Code, 6254(k) & 6255.) The (Continued, see Criminal, page 16) STRUCTURED SETTLEMENTS Edward J. Schrenzel, cssc CERTIFIED STRUCTURED SETTLEMENT CONSULTANT I m proud to be a continuous sponsor of OCTLA meetings and events since ~Ed Over 25 years of structured settlement and insurance experience Structured settlements Attorney fee structures Annuities Financial services No-fee services for attorneys and their clients Structured Financial Associates, Lake Forest Drive, Lake Forest, CA CALIFORNIA INSURANCE LICENSE 0B

16 Criminal (continued from page 15) claimant s attorney should also conduct an asset or background check on the perpetrator utilizing public information sources or an investigator. Similarly, documenting the client s injuries by obtaining medical records, witness statements, and photographic evidence is advisable. Once the defendant is convicted, take immediate steps to obtain complete and unredacted copies of the police report and any photographic evidence obtained by the police agency. In addition, once the criminal case is concluded it is imperative to secure a complete copy of the defendant s criminal file, including all minute orders and change of plea forms (ie., Tahl waivers pursuant to Orange County Superior Court Rule 852(B)-(E)) contained therein. Tahl waivers can often contain damaging admissions, sometimes in the defendant s own handwriting or that of his attorney. The criminal court file can also contain other useful information that will aid in service of process or enforcement of a judgment, such as the defendant s address, employer information, date of birth, driver s license number, and social security number. Significance of the Change of Plea or Disposition at Trial Once the criminal defendant changes his plea to guilty or no contest, or is either acquitted or convicted at trial, new issues arise as to the legal significance of such resolution. The Change in Plea: A criminal defendant s plea of guilty is not conclusive in a subsequent civil action based on the same act. It is simply evidence of a party s admission, but it may be explained away by the defendant. (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 605.) A plea of no contest (also known as nolo contendere ) to a crime punishable as a felony has the same legal effect as a plea of guilty; that is, it is admissible but may be Acquittal or Conviction: An acquittal in explained away. (Evid. Code, 1300.) On a criminal trial would not be binding as the other hand, a no contest plea to a crime collateral estoppel or res judicata in a subsequent civil action arising from the same that is not punishable as a felony may not be used as an admission in any subsequent act, due to the differences in the burden of civil action arising from the same act. proof in criminal actions and civil proceedings. On the other hand, a conviction in a (Pen. Code, 1016(3), Rusheen v. Drews (2002) 99 Cal.App.4th 279, ) felony criminal action (including a judgment based on a plea of no contest) would have Neither a withdrawn guilty plea nor an res judicata or collateral estoppel effects in unaccepted offer to plead guilty is admissible in any later proceeding. (Evid. Code, a subsequent civil action if offered to prove any fact essential to the judgment. (Evid ) PATRICK FARBER STRUCTURED SETTLEMENT BROKER IN GRATEFUL APPRECIATION FOR YOUR LONG STANDING SUPPORT & PREMIER AFFILIATE PARTNERSHIP OF THE ORANGE COUNTY TRIAL LAWYERS ASSOCIATION

17 Code, 1300, Principal Life Insurance Co. v. Peterson (2007) 156 Cal.App.4th 676, 687.) It would appear there is no reason why a conviction following a trial in a misdemeanor action would not likewise be admissible in a subsequent civil action, yet, there appears there is no specific legal authority addressing this point. Restitution Orders in the Criminal Conviction It is commonplace in a criminal conviction for restitution to be ordered, and usually tied in as a condition of probation. (Pen. Code, (f).) Unfortunately, restitution is often not aggressively sought from criminal defendants by various probation departments, especially against misdemeanor defendants. When it is sought, 17 restitution is usually limited to economic damage claims for medical bills, loss of earnings, or property damage. However, restitution for non-economic damages is allowed for felony convictions under Penal Code section 288 (which concerns certain enumerated sex offenses against minors under the age of 14 years.) (See Pen. Code, (f)(3)(f).) As a practical matter, do not expect the probation department to become your collection agency against the convicted defendant; they have neither the time, budget, nor incentive to do so. On rare occasions, a probation department may actually reduce a restitution order to a money judgment in the name of the victim as a judgment creditor, at which time the victim may attempt to satisfy the judgment in the same manner as any other judgment creditor. (Pen. Code, (f) & 1214, Welf. & Inst. Code, 730.6(h)(i).) Although payment of a defendant s insurance proceeds to a claimant is not a bar to a restitution order, a criminal defendant is entitled to offset any restitution order by amounts paid by their insurance company to the victim. (People v. Short (2008) 160 Cal.App.4th 899, 903.) Attorney s Fees in Felony Convictions In a civil action predicated on an act that resulted in a defendant s felony conviction, the civil trial court has the discretion to award attorney s fees as an element of the prevailing plaintiff s costs of suit (provided a proper motion is filed.) (Code Civ. Proc., ) Accordingly, plaintiff s counsel should keep careful contemporaneous time records in a potential felony conviction case. Pleading Considerations Once the time to file a civil action predicated on a criminal act arises, in addition to whatever intentional tort theory would apply to the given fact situation, the astute (Continued, see Criminal, page 43)

18 The Honorable Kim G. Dunning The following interview of this year s hobbies that occupy your spare time? recipient of the Judicial Excellence Judicial Profile Judge Dunning: Dogs, golf, and reading. Award, Honorable Kim G. Dunning, is the second interview of Judge Dunning to appear in The Gavel. The first interview appeared in the Winter 2003 edition of The Gavel before Judge Dunning became the Assistant Presiding Judge of the Orange County Superior Court in The Gavel: You are just finishing a two-year term as presiding judge and three years as assistant presiding judge before that. There may be some readers who do not know exactly what the presiding judge and assistant presiding judge do. How would you describe these jobs? Judge Dunning was unanimously elected to a two-year term as Presiding Judge, beginning in Judge Dunning serves on the Judicial Council s Court Technology Advisory Committee, California Case Management Judge Dunning: With one hundred fortyfour judges and commissioners, more than seventeen hundred employees (not including Sheriff s personnel who work for the System Governance Sub-Committee, and court under contract with the county), Honorable Kim G. Dunning Judicial Recruitment and Retention Working numerous locations, and a budget of more Group. She has been instrumental in than $230 million per year, both positions The Gavel: How did you become interested promoting technology to improve access to are entirely administrative. Our court, the in law? the courts and to serve the public. Despite third largest in California, operates much Judge Dunning: I went to law school the mandatory court closure days and like a large company. The PJ [presiding because there was no architecture school budget cut-backs, she endeavored to keep judge] and APJ [assistant presiding judge] within driving distance of our home. Orange County trial courts running as positions are both very hands-on; and we smoothly as possible, with only a few involuntary lay-offs. Despite budget challenges, The Gavel: What did you do before taking the bench? work with the court s Chief Executive Officer, Alan Carlson, to keep it all running. Orange County remained a leader in innovative collaborative court programs that The PJ and APJ help shape policy for our Judge Dunning: I was an attorney for 20 court and, through our involvement with years before my 1997 appointment. I started deal with the underlying issues often found the Administrative Office of the Courts and as an associate with Morris, Polich & in criminal, juvenile delinquency and the judicial branch s Southern Region Purdy in Los Angeles and then spent most dependency matters. When Judge Dunning (which comprises all trial courts from Kern of my legal career within walking distance was the Presiding Judge, the court initiated County to the border), for all of California s of the main courthouse in Santa Ana as a a program that allows individuals to schedule traffic or minor offense hearings online trial courts. We have active roles in the research attorney at the Court of Appeal in work of the administrative office of the Santa Ana for the Honorable Thomas F. or by telephone, reducing long lines and courts and the judicial branch s Southern Crosby, Jr. waits at the courthouse; opened a courtroom Region. We also serve as resources for in the county s main jail to handle first appearances by in-custody defendants; piloted civil e-filing; and made civil documents available for downloading online. Judge Dunning s new assignment is on the complex civil litigation panel. The Gavel: Where did you go to law school? Judge Dunning: Southern Methodist University School of Law in Dallas, Texas. The Gavel: How did working at the Court of Appeal influence your judicial perspective? Judge Dunning: Being a research attorney allowed me to develop a neutral, judicial perspective long before I was appointed to the bench. I would never have been exposed to so many hearings and trials, and in so many different areas of the law, had I been in private practice. It was great preparation for the trial bench. our elected representatives in Sacramento, particularly on budget issues and legislation that affects trial courts and the public. There are a lot of conference calls and meetings. The Gavel: Obviously, the past two years have been difficult times for the court. What were your greatest challenges as presiding judge and what was your approach to handling those challenges? Interview by Adina Stern, Esq., Editor of The Gavel. The Gavel: Do you have any interests or 18 Judge Dunning: The greatest challenges

19 were to maintain service to the public and the bar and to stabilize morale among the bench and court staff during a statewide economic crisis and unprecedented monthly mandatory court closure days. Eighty percent of our budget is dedicated to staff salaries/benefits and court security, which does not leave us much for everything else we do. We had to drastically reduce expenses without dismantling the solid operational structure we had spent years building. We rejected the notion that we would simply tread water and hope to ride out the storm with minimal damage. Instead, our approach was to seize opportunities when and where we could and not allow ourselves to stagnate. The Gavel: It seems like Orange County weathered the recent crises better than many other counties. Why? Judge Dunning: Our court had healthy reserves and a sound fiscal policy going into the budget crisis. We immediately implemented business process re-engineering (BPR) we challenged our management and staff to improve court operations and do more with less. And they succeeded. BPR was also key in helping us avoid involuntary layoffs. We did not succumb to analysis paralysis and we did not hide our checkbook. Instead, we continued to spend where we knew the investment would save us money and/or staff time and resources in the short and long terms. For example, we implemented a new VOIP phone system; we eliminated paper files in all our civil cases, from small claims to complex civil; we embraced the Court Case Management System in our civil, probate and mental health calendars and made those operations more efficient. Civil case documents are now available online, we instituted e-filing in civil cases, and attorneys and litigants can now complete and save Judicial Council forms in all case types online. In an extraordinary collab - oration with the Orange County Sheriff, District Attorney, and Public Defender, we opened a courtroom right in the middle of the main jail to handle first appearances by in-custody defendants. The bottom line, however, is our bench, administration, management, and staff are the best. The Gavel: What was the most rewarding part of being presiding judge? THANK YOU OCTLA would like to thank these members who have recruited one or more NEW members this past quarter: Brent Caldwell Richard Donahoo Mark Edwards C. Bennett Jackson, Jr. Julie Thornton Judge Dunning: It would be impossible to come up with one answer. Just about every day as PJ was an adventure, though some were certainly better than others! It was a once-in-a-lifetime chance to step outside the comfort zone of a courtroom and be an integral part of the third branch of government. I was very fortunate to serve our court in this capacity. The Gavel: Are you looking forward to your current assignment in complex? Judge Dunning: Very much. As rewarding as it was to serve as the presiding judge, it is great to be back in the courtroom. OCTLA Welcomes the Following New Members Mark Adams Jillian Balancio David Borsack Justin Karczag Jane Kearl Diana Nguyen Nick O Malley Ashley Reagan Geoffrey Trachtenberg LAW STUDENT Members Samantha Arnold Elmira Danielyan Nathan Hogle Shawna Meltan James Moore Bryan Owens April Remigio Langdon Southworth Leila Stevens Jill Trotchie Thomas Trutanich AFFILIATE Members Hurria Medical Corporation, Dr. Kesho Hurria GENTOSI, Paul A. Gentosi, Expert Witness & Litigation Support The Gavel: What should an attorney know about you before appearing in front of you? Judge Dunning: There is not much to know about me except that I expect you to be civil to one another and to court staff, to be prepared, to provide accurate facts and legal authority, and to accept courtroom victories and setbacks with professional dignity. I set high standards for myself and work hard every day to do my best and to make the right decisions which is to say, sometimes I will not agree with your legal position. The Gavel: Do you have any pet peeves? Judge Dunning: I would dearly love to tell you I am immune to any aggravation while on the bench. In truth, I share the same pet (Continued, see Dunning, page 34) 19

20 An Introduction to Search Engine Optimization B ack in the 90s there was no such thing as a search engine optimization (SEO) expert and the term hits was the sales pitch of the day. Now, webmasters (the people in charge of websites) are not very concerned with hits, but they are interested in such things as traffic, SERPs, click through rates and conversion rates. The SERP (search engine results page) is probably the most discussed subject among webmasters and law firms with websites. These are the natural search results, also known as the organic search engine results. The significance of the SERPs is the impact it has on the actual number of human visitors (traffic.) The difference between the number one position and the number five position is enormous. The number one position in the SERPs gets about 42% of web traffic; fourth position gets about 6%. About 62% of search engine visitors will go to the websites appearing on the first page that appears on their screen and about 90% within the first three pages. Websites not appearing on the first three pages will, most likely, get virtually no visitors at all. A majority of people using search engines feel that top firms appear first in the SERPs and, therefore, go to the websites appearing first. It is for this reason that the SERPs is a very important subject among law firms with websites. A common misconception is that you can optimize your website and appear at the top by simply changing the keywords in the meta tags, but in reality the process of attaining good SERP results is very complicated. The dominant search engine is Google, Arnold Hernandez is an attorney and webmaster at Penney and Associates, and a principal at a SEO organization. Nuts & Bolts Arnold Hernandez, esq. 20 which accounts for about 60 70% of the market and is usually the focus of SEO experts and webmasters. The Google formula used to determine the SERPs is relatively accurate as evidenced by its market share. The algorithm used by Google is a non-linear formula. The Google formula s non-linear characteristics make it difficult to determine exactly how Google weighs the characteristics of websites. To complicate matters more, there is a lag between changes made to a website and the SERPs. What is known about Google is good websites get better ranking in the SERPs. SEO experts have developed techniques to exploit weaknesses in the algorithm, but Google has likewise developed techniques to counter manipulation. Google is constantly changing the way it ranks websites and the way it counters attempts to manipulate the SERPs. What worked once to manipulate the results may no longer work. Among these is the use of meta tags to determine rank. For the most part, Google now ignores meta tags. The reason is that meta tags can be subjective and misleading. When your website is about DUI attorneys and the meta tags say it is about attorneys, DUI, domestic violence, drug possession, assault, robbery and every other type of crime imaginable, the website will only rank well for DUI. Using long lists of keywords in the meta tags can even cause harm in the search results, because it is considered spam by Google and other search engines. Google also punishes attempts to manipulate the results. Among these are attempts to cloak content. This is done by simply putting text on the website with the same color as the background color or text in such small font that it is no longer readable to humans. This technique still works for a few hours. The search software (often referred to as spiders ) can read the content of the site, but humans cannot. The result is often fantastic for about 10 to 24 hours, but the quick rise will cause Google to look closely at the site. Once it discovers the cloaking, the site will quickly drop in rank on the SERP until it completely disappears from the search results. This is one of many techniques commonly referred to as black hat techniques which Google does not tolerate. In extreme cases the website is banned and removed from Google s indexes. The only remedy is to ask Google to reconsider the site or start a fresh new website. There are some techniques, referred to as gray hat techniques, that take a middle ground approach to SEO. These gray hat techniques are considered unethical by some and acceptable by others. By and large these are techniques Google has not been able to address because of the nature of its algorithm. Some of these techniques (Continued, see Optimization, page 41)

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