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Trial Judge Of The Year HONORABLE BARRY GOODE Contra Costa County

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					                                                    Trial Judge Of The Year
                                               HONORABLE BARRY GOODE
                                              Contra Costa County Superior Court




             Trial Judge Of The Year
         HONORABLE FRANK ROESCH
          Alameda County Superior Court




                                   Also in This Issue:
                             Meet Your New Civil Judges:
Honorable Steven K. Austin • Honorable Laurel S. Brady • Honorable Robert D. McGuiness
                    ACCTLA ALAMEDA-CONTRA COSTA TRIAL LAWYERS’ ASSOCIATION

                                                       2011 Dues Notice

                                  Patricia A. Parson, ACCTLA Executive Director
                                    1884 Knox Street, Castro Valley, CA 94546
                      Phone 510.538-8286 • Fax 510.581-8222 • Email triallawyersacc@aol.com

               Enclosed is my check payable to ACCTLA for my 2011 membership dues. I apply for the following:

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                                            Dedicated to the improvement of the fair administration of justice.
                                                                                                                                                                                                 ^
                                                             theVerdict                                                                                  Spring 2011




                                                                                             CONTENTS


                                               DEPARTMENTS

                                               From the President .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 4
                                               A. Charles Dell’Ario


                                               Editors’ Corner  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 6
                                               Suizi O. Lin and Rica Cruz Santo


                                               Sustaining Members  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 7

                                               Member News  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 18


                                               FEATURES

                                               Trial Judges of the Year
                                               Hon. Barry Goode and Hon. Frank Roesch  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 8

                                               Meet Your New Civil Judges
                                               Hon. Steven K. Austin, Hon. Laurel S. Brady
                                               and Hon. Robert D. McGuiness  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 12
ABOUT THE COVER
Balamuth Designs
                                               Photos from ACCTLA’s 2011 Judges Night  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 17
                                               Oasii Lucero, Oasii Photography
Kathleen Balamuth
925.254.4660

Statement of Editorial Policy
This magazine presents a forum for the
various authors of matters published herein.
Therefore, it does not necessarily represent
the views of ACCTLA, which publishes this
magazine as a public service without charge
to members and judges. Materials submitted
may be subject to review and editing.
                                                                                                                          FROM THE PRESIDENT




                                                                                                                              A. Charles Dell’Ario


As you read this, Law Day will be upon             was, however, one of the most gallant, generous,   gave — be prepared, be patient, be civil
us . It’s the time to celebrate our profession .   manly and disinterested Actions of my whole        and be respectful of the court and your
Law Day always provides a time for us to           Life.” This is our tradition down through          opponent . Judge Austin said it best .
reflect on why plaintiffs’ and criminal            history including Samuel Leibowitz’s               “Always behave in court like your mother
defense lawyers do what we do . Corporate          1930s defense of nine black Alabama                is sitting in the back row .”
lawyers don’t do it; prosecutors don’t do          teenagers, the Scottsboro Boys, accused of             Law Day is a time to be proud you’re
it; and insurance defense lawyers most             rape to the representation by Michael Tigar        a lawyer on our side . Do well by doing
certainly don’t do it . We represent people        and Brian Hermanson of Terry Nichols               good . u
who need our help . Without our help,              in the 1995 Oklahoma City bombing
money, corporate might, governmental               case to contemporary efforts by lawyers            — Chuck Dell’Ario graduated from Stanford
oppression and popular prejudice would             to represent Guantanamo detainees in the           and Hastings, where he founded the Hastings
tyrannize individuals and small business           global war on terrorism . We are duty bound        Constitutional Law Quarterly. He’s practiced
more than they already do .                        [“n]ever to reject, for any consideration          law in Oakland since 1974 and has been a
    Often this means taking on unpopu­             personal to himself or herself, the cause          certified appellate specialist since 1997. His
lar causes . Our first lawyer­president, John      of the defenseless or the oppressed .”1            resume includes million-dollar jury verdicts,
Adams, defended the British officer in                 Our zeal, of course, must always be            and he has preserved on appeal the largest ever
command of the detail charged with                 tempered by the bounds of the law and              tort award against the City of San Francisco.
murder after the “Boston Massacre .” In his        professionalism . Reading the interviews
diary, Adams wrote that his service, “pro-         of the judges featured in this issue, I was
cured me Anxiety, and Obloquy enough. It           struck by the similarity of the advice each        1
                                                                                                          Business and Professions Code sec . 6068 (h) .




      —     WANTED —                                                       Would you like to be published?
          Will/Estate Contests
           Conservatorships
    You handle the estate, we do the contest.
                                                           Publication in The Verdict is excellent exposure. Our readers are
      Cases, except conservatorships, often                 most interested in issues surrounding plaintiffs’ personal injury,
    handled on a contingent fee basis, but can                       family, appellate, criminal and/or business law.
    be hourly. Referral fee where appropriate.
          Pedder, Hesseltine,                                           If you are interested in submitting an article to
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       oldest partnership in Contra Costa County                               THE VERDICT, please email it to:
                      (since 1955)
      p 925.283-6816 • f 925.283-3683                                         Suizi Lin, suizilaw@gmail.com
        3445 Golden Gate Way, P Box 479
                               .O.                                                          - or -
             Lafayette, CA 94549-0479                                     Rica Cruz-Santo, rlcruz44@gmail.com
             AV Martindale-Hubbell




4                                                                                                                                             Spring 2011
                                                                                                     Alameda-Contra Costa Trial Lawyers’ Association
         Dorene Kanoh, VP                                                  Dorene Kanoh, VP            1884 Knox Street • Castro Valley, CA 94546
     50 Fremont St., Ste. 2110                                         152 N. 3rd St., Ste. 603             510.538.8286 • www .acctla .org
    San Francisco, CA 94105                                             San Jose, CA 95112
         tel 415.772.0900                                                  tel 408.293.1113                             Officers
   email dorene@adrservices.org                                      email dorene@adrservices.org             A . Charles Dell’Ario, President
                                                                                                               Lyle C . Cavin, President-Elect
                                        www.adrservices.org                                                     Alexis McKenna, Treasurer

    COST-EFFECTIVE DISPUTE RESOLUTION
                                                                                                                   Jim W Yu, Secretary
                                                                                                                           .

                                                                                                                 Executive Director
                                                                                                                    Patricia A . Parson

                                                                                                                 Board of Governors
                                                                                                        Anne Beles               Kristin Lucey
                                                                                                        Nick Casper              Kristoffer Mayfield
                                                                                                        Jay Chafetz              James O’Donnell
                                                                                                        Rica Cruz­Santo          Ryan Otis
      Stephen             Michael             Hon. Joseph        Hon. Alfred        Hon. James          Robert B . Gray          Richard Phelps
       Blitch,            Carbone,            Carson (Ret.)    Chiantelli (Ret.)   Emerson (Ret.)       Matthew D . Haley        Ian Rivamonte
          Esq.               Esq.                                                                       Marjorie Heinrich        John Schreiber
      $450/hour          $465/hour            $400/hour          $500/hour           $425/hour          Jo Ann Kingston          Joseph Tomasik
                                                                                                        Suizi Lin

                                                                                                                   Past Presidents
                                                                                                        Peter Alfert              Micha Star Liberty
                                                                                                        Bryce C . Anderson        Michael J . Markowitz
                                                                                                        Kelly Balamuth            David McClain
                                                                                                        Richard J . Baskin        Patrick J . McMahon
                                                                                                        Richard D . Bridgman
     Hon. Richard        Hon. Richard             Eric           Hon. David           Michael                                     Anthony Petru
                                                                                                        Lyle Cavin                Paul L . Rein
      Flier (Ret.)       Hodge (Ret.)            Ivary,           Lee (Ret.)          McCabe,           Stephen H . Cornet
                                                  Esq.                                   Esq.                                     Elise R . Sanguinetti
                                                                                                                    .
                                                                                                        Steven W Derby            Eric Schnumacher
      $400/hour          $500/hour            $400/hour          $400/hour           $350/hour                   .
                                                                                                        Brian P Evans
                                                                                                                                  Robert G . Schock
                                                                                                        Daneen C . Flynn
                                                                                                                                  Julia Sherwin
                                                                                                        William Gagen, Jr .
                                                                                                                                  Aaron Simon
                                                                                                        William D . Gibbs
                                                                                                                                  Richard J . Simons
                                                                                                        J . Gary Gwilliam
                                                                                                        John Hallbauer            Scott H .Z . Sumner
                                                                                                        Molly Harrington          John M . Starr
                                                                                                        David Hicks               Leroy F. Vadney
     Hon. Bonnie          Hon. M.O.            Hon. Alex        Hon. Douglas         Hon. James         Peter J . Hinton          R. Lewis Van Blois
     Sabraw (Ret.)      Sabraw (Ret.)      Saldamando (Ret.)    Swager (Ret.)      Trembath (Ret.)      Eric H . Ivary            William F . Whiting
                                                                                                        Steven Kazan
      $425/hour          $400/hour            $400/hour          $425/hour           $425/hour
                                                                                                                  THE       Verdict
                                                                                                        A publication of the Alameda­Contra Costa

                 Real Estate Law                                                                                Trial Lawyers’ Association
                                                                                                                       - Since 1970 -
                                                                                                                      Editor-in-Chief
                        Litigation  •  Transactions  •  Leases                                                       Suizi O. Lin
                                                                                                                Law Offices of Suizi Lin
                      Case Referrals and Associations Welcomed                                                      510 .909 .8224

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                                                                                                                   Rica Cruz Santo
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The Verdict                                                                                                                                            5
            ACCTLA’s                                       Editors’ Corner
        Mentoring Program

     Take advantage of ACCTLA’s Mentoring
     Program to improve the quality of litigation
     in our courts. Attorneys who call will be
     referred to a mentor attorney for a free
     consultation. The mentor will not prepare
     your case but will assist you in your
     approach to the case.
                                                    In light of the positive feedback we received for the Spring 2010 edition of The Verdict,
     This program is not just for newer attor-      this year’s Spring edition also focuses on our brethren in black through interviews with
     neys, but also is available for seasoned       Alameda and Contra Costa Trial Judges of the Year: the Honorable Frank Roesch and
     practitioners who run into problems or
                                                    the Honorable Barry Goode, respectively, and interviews with judges new to the civil
     simply want to bounce ideas off another
                                                    calendar in both counties . We hope these interviews, which have been transcribed
     seasoned practitioner. The mentors —
                                                    verbatim, will assist our members in becoming familiar with these judges . If we get
     who are all ACCTLA members — have
                                                    further positive feedback and volunteers to conduct the interviews, we hope to include
     varied degrees of experience in varied
     areas of the law, and can address your
                                                    interviews with judges new to the criminal bench next year .
     concerns regarding Motions in Limine, jury     Your hard­working editors have brainstormed and developed the themes for the next
     selection, problems that arise during trial
                                                    two issues:
     or issues relating to proposed instructions,
     or questions involving any of the earlier      Summer/Fall: Experts/Discovery . Tips from the Masters on what must be asked of
     stages of litigation.                          experts in deposition; on preparing your expert for deposition and qualifying your expert
                                                    in Federal Court . We plan on having this edition hot off the presses in September .
               For further information,
                   please contact:                  Winter: ADR . Articles concerning pre­litigation settlement via demand letters;
                Patricia A. Parson                  mediation, arbitration and Kaiser arbitration . This edition is scheduled to be in your
          ACCTLA Executive Director                 hands by January of next year .
                 (510) 538-8286
                                                    If you’re interested in authoring an article for an upcoming issue or providing witticisms
            triallawyersacc@aol.com
                                                    via your literary skills, please contact Suizi Lin at suizilaw@gmail .com or 510 .909 .8224 .

                                                                        Editor-in-Chief Suizi Lin       Managing Editor Rica
 The Verdict Editors are                                                represents the injured          Cruz Santo is an asso-

p Looking for YOU!                                                      party in a myriad of
                                                                        personal injury claims.
                                                                                                        ciate at the firm of
                                                                                                        Kathleen K. Reeves &
    Are you funny? witty? The legal                                     The principal of the Law        Associates. Her practice
    equivalent to Will Durst or Stephen                                 Offices of Suizi Lin, she is    includes all aspects of
    Cobert? If so . . . The Verdict wants            also an independent contractor to Bay Area         divorce and legal separation, child custody,
                                                     personal injury law firms.                         support and visitation.
    you for a new segment adding humor
    to the magazine through funny, witty                 Publications committee member Jay Chafetz represents the injured
    commentary on current legal issues.                  party in personal injury, medical malpractice, wrongful death, elder
    Contact Suizi Lin at suizilaw@gmail.                 abuse/neglect, child sexual abuse, product liability, miscellaneous
    com - or - 510.909.8224.                             torts, and contested will or trust matters. The Law Offices of Jay
                                                         Chafetz is located in Walnut Creek.


6                                                                                                                                      Spring 2011
              u   Current ACCTLA Sustaining Members u

      RICHARD J. BASKIN                         GILLIN, JACOBSON,                   KAZAN, McCLAIN, LYONS,
                                                ELLIS & LARSEN (cont.)              GREENWOOD & HARLEY (cont.)
      FINLAY J. BOAG                              Luke Ellis                          Frances C. Schreiberg
                                                  Jim Larsen                          James Oberman
      JONATHAN BRAND
                                                  Kristin M. Lucey                    Andrea Huston
      J. MICHAEL BROWN                                                                Petra DeJesus
                                                GWILLIAM, IVARY, CHIOSSO,             Ian Rivamonte
      TERRY D. BULLER                           CAVALLI & BREWER                      Matthew Thiel
                                                  J. Gary Gwilliam                    Barbra Ferre
      JOSEPH W. CAMPBELL                          Steven R. Cavalli                   Justin Bosl
                                                  Stephen J. Brewer                   Michael T. Stewart
      LYLE C. CAVIN, JR.
                                                                                      Elina Agnoli
                                                HILDEBRAND, McLEOD
      STEPHEN H. CORNET                                                               William Ruiz
                                                & NELSON
                                                                                      Francis Fernandez
                                                  Anthony S. Petru
      A. CHARLES DELL’ARIO                                                            Gloria C. Amell
                                                  Kristoffer Mayfield
                                                                                      Leigh A. Kirmsse
      THE DERBY LAW FIRM
                                                HINTON, ALFERT, SUMNER
                                                                                    LIBERTY LAW OFFICE
      DAVID I. FISCHER                          & KAUFMANN
                                                  Peter Hinton                      GEORGE W. NOWELL
      FURTADO, JASPOVICE                          Peter Alfert
      & SIMONS                                    Scott H. Z. Sumner                RICHARD PHELPS
        Martin L. Jaspovice                       Elise Sanguinetti
        Richard J. Simons                         Mark Baller                       PAUL L. REIN

      WILLIAM E. GAGEN, JR.                     KAZAN, McCLAIN, LYONS,              ROBERT G. SCHOCK
                                                GREENWOOD & HARLEY
      GILLIN, JACOBSON,                                                             JOHN T. SCHREIBER
                                                  Steven Kazan
      ELLIS & LARSEN                              David McClain                     JOSEPH E. TOMASIK
        Andrew R. Gillin                          Denise Abrams
        Ralph Jacobson                            Dianna Lyons                      R. LEWIS VAN BLOIS
                                                  Gordon Greenwood




                                   Become a sustaining member and reap the benefits!
                  They include free admission to Judges’ Night and the What’s New in Tort & Trial seminar.
                             See page 2 for the Dues Notice or call Pat Parson, 510.538.8286.




The Verdict                                                                                                      7
                                                                               Trial Judges
                                                                                                                         Interviewed by Suizi Lin




                                            Hon. Barry Goode
                                                     Contra Costa County

Now that you’ve been on the bench for over a year,    most lawyers tend to become partisan;             How has your experience been this past year
what has surprised you the most?                      they “buy into” their side of the litigation .    as a civil judge?
I think the mix of cases has surprised me             A judge is freed from that . I get to watch       It’s been terrific . I have spent a fair amount
the most . Construction defect cases make             things play out in a more open, receptive         of time in trial and have had the pleasure
up a larger part of my caseload than I                way . It is a refreshing take on litigation .     of watching some very fine trial lawyers at
would have predicted . Another surprise                   Another thing I have noticed . . . As a       work . I also spend a lot of time managing
— the extent to which parties fail to                 lawyer, you do not know what issues the           cases, trying to get them in a position to be
complete their discovery until very close             judge is going to find most important . You       resolved . I enjoy the freedom the complex
to trial . That results in frantic deposition         can often do a pretty good job of predicting      litigation department gives the judge and
schedules and requests to hear discovery              that . In fact, attorneys will sometimes try      the attorneys to find creative and effective
motions on shortened time . Other than                to position a case so their best issues are       ways to isolate and resolve the one or two
that, there have been few surprises . Hav­            the decisive ones . But you can never know        issues that can help settle a case . All in all,
ing had a civil practice for more than 25             for sure how the judge will see it . So you       it has been a nice mix of cases, issues and
years, I had a pretty good idea of what I             spend time dealing with many issues . As          people . It has been a very enjoyable year .
was getting into .
                                                      a judge, I can often ferret out what I believe    How has the declining economy impacted the
Is there a difference in how you view civil cases     to be the linchpin issues and focus on them .     cases coming through your department?
sitting on the bench versus when you practiced as     That lets me be more effective in how I           I have to divide that into three parts . First,
an attorney with an extensive civil background?       deploy my energy . Of course, I want to be        as a result of the economy, we have many
I find that I have a different mindset now .          sure I have found the right issues . So, before   collection cases . But that same economy
Putting it simply: I don’t care who wins .            I make up my mind, I will almost always           has brought budget cuts and a 25% reduc­
I approach a case as a very interested                go back and look at the papers filed by the       tion in our staff . That means we are back­
spectator . I just think, “Well, let’s see what       side against which I am leaning . I want to       logged in our limited jurisdiction filings .
law and evidence everybody has .”                     see if there is something I missed . But I do     In addition, the time to process default
     Even though a lawyer has to evaluate             find that my focus can be tighter as a judge      judgments has been extended considerably .
a client’s case objectively and rigorously,           than it was as a lawyer .                                                        continued on page 10


8                                                                                                                                          Spring 2011
of the Year
and Rica Cruz-Santo




                                                    Hon. Frank Roesch
                                                                Alameda County

   What motivated you to become an attorney?       down the kinds of things we did . Between         a much more relaxed schedule, so you
   Well, I think there were two motivations .      that and a reduction in funding from the          can fit in other things easily . You can go
   One was to help people . The other was          federal government, I went on a half­time         to trial for a week in another case and not
   that I wanted to change the world .             basis in about 1980 or 81 and started a           have to worry about the probate cases
                                                   private practice for the other half time .        at all .
   And did you change the world?                   After five to six years of that, I realized
   The world has changed a great deal in my        it’s hard to maintain two full time jobs .        Since your clients have passed away, they’re not
   life time . A huge amount . I’d like to think   So I left the Legal Aid Society and went          in any major hurry…
   that I helped to make it a better place,        into private practice full time . I was a sole    No, no . Your clients are the people who
   both in practice and on the bench .             practitioner in Union City from about             are the survivors, not the decedents .
                                                   1987 until I was appointed to the bench           Sometimes they are banging on the door,
   Please tell ACCTLA members about your work                                                        needing something done quickly .
                                                   in 2001 .
   experience before becoming a judge.
   I started practice as a legal aid lawyer in     What did you do in private practice?              Do you ever wake up at night thinking about
   Union City . I did that for about five years    I did mostly civil litigation across a very       a case, wishing you had handled something
   before the whole legal aid system was           broad spectrum of types of cases . I am           differently?
   reduced by Ronald Reagan by the statu­          easily bored and dislike doing just one           You mean those cases in my past where
   tory limitations he put on what legal aid       kind of case all the time . In my later years,    I was the lawyer and we lost but we
   lawyers could do . Prior to that time, we       I started doing less litigation and more          should have won?
   did a good number of class action lawsuits .    process type of work . I had started taking
   We did a lot of what we liked to call                                                             Either in practice or as a judge.
                                                   probate litigation cases and later began
   “impact litigation .” The kinds of things                                                         I still remember those . Those are the cases
                                                   to do probate administration cases, a dif­
   where there might be an impact bigger                                                             that you remember; the ones that you
                                                   ferent animal all together . They were
   than just on the individual litigant                                                              should have won but somehow didn’t .
                                                   actually a very nice fit to litigation practice
   involved . After 1980 we had to scope           because you can spread out the work on                                           continued on page 10


   The Verdict                                                                                                                                        9
Judge Goode (cont)                                           I have one advantage . Most of my                     Judge Roesch (cont)
We just don’t have the personnel to keep                 unlimited jurisdiction cases are e­filed .                As a judge, I don’t wake up at night
up with the flood of these cases . That’s the            Still, the one tip I give litigants is to be              worrying . When I was a lawyer, I did
“inside baseball” part of the answer .                   sure to provide the judge’s chambers with                 all the time . Mostly, I woke up trying to
    Second each civil judge in our county has            courtesy copies of motion papers . That                   figure out how I was going to get that
a portfolio of limited jurisdiction cases . So,          would be particularly true in departments                 juicy piece of hearsay pass the hearsay
every Monday through Thursday I have an                  without e­filing . Our staff tries very hard              rule .
8:30am calendar of collection cases . That’s             to make sure all the judges’ files are kept
my window into the world of those who lost               up to date . But the system is not perfect                What case, good or bad, stands out in your
their jobs, fell ill, lost a spouse, or for some         and it is unlikely to get better any time                 memory?
other reason can no longer pay their credit              soon . So a lawyer ought to question, “Am                 That’s hard to say . On the bench, I have
cards . Most of those defendants have no                 I in a court that is so resource-starved that the         had a number of cases that stand out . I
lawyer . So I have, in effect, a pro per calendar .      department may need a courtesy copy?” At an               think what I call the “Furlough Cases”
And — while I like working with self­                    appearance, you may want to ask the                       — the cases where various employee
represented litigants — that calendar brings             judge if it would help to have a courtesy                 groups had sued the governor for compel­
a measure of emotion and real pain to an                 copy delivered to chambers . The judge                    ling them to take furlough were maybe
assignment in which (in the general run of               wants to spend his or her time reading                    amongst the most interesting cases I have
cases) you deal with lawyers arguing without             your papers, not hunting for them .                       done; a lot of close issues and importance
that kind of difficult, personal overlay .                                                                         to the outcome . The four cases where I
    The third observation gets a bit more                Last year, your advice was to “Remember the Boy
                                                                                                                   had issued decisions are still on appeal .
speculative . I have seen a number of                    Scout motto: be prepared. And while you’re at it, being
                                                                                                                       There was a different related com­
bankruptcy filings that have caused stays                trustworthy, helpful, friendly, courteous, kind and
                                                                                                                   pelling case coming out of Sacramento
in my cases . That’s undeniable . But                    cheerful are not bad attributes either.” Do you have
                                                                                                                   Superior Court that ended up in the
beyond that, it seems to me that a num­                  any new advice for lawyers appearing before you?
                                                                                                                   Supreme Court, which was decided there .
ber of settlements have probably been                    I don’t think so . Being prepared, trust­
                                                                                                                   The four cases from my court are back
influenced by the chance that a plaintiff                worthy and courteous are about as impor­
                                                                                                                   in the Court of Appeal and the Court is
or defendant may have to file for bank­                  tant as it gets for a lawyer . I guess I would
ruptcy . Some settlements have brought                   underline civility . Your clients are adverse .           now considering the issue of how the
less money than they might have in better                They have a problem that needs to be                      Supreme Court’s decision in the Sacra­
times; and some cases pursue fraud rather                resolved . But when lawyers are respectful                mento case impacts those four cases . Three
than contract claims, in part, so the judg­              and civil to one another, it goes a long                  of them are pretty similar, while one is
ment cannot be discharged in bankruptcy .                way to helping them do their job of bring­                fairly different .
In other words, the fact that parties are                ing the matter to resolution — even if the                    Another case, the case about the smelt
in straitened circumstances can affect the               case has to be tried . One of the nice things             and the salmon, comes to mind . It was the
positions both sides take .                              about sitting in the complex civil litigation             first case where editorials in newspapers
                                                         department is that most of the lawyers                    called me a “horse’s ass” or something like
What are you doing in your department to mitigate                                                                  that . It stands out mostly because of the
                                                         with whom I work are experienced enough
the effects of the budget cuts that have been success­                                                             significance of the issue . I really think
                                                         to know that . The level of civility in this
ful and that you would suggest to other judges?                                                                    there are some other important ones that
                                                         courtroom is usually very high .
As I mentioned, the budget cuts have been                                                                          weren’t quite so newsworthy .
devastating to the courts . The loss of 25%              Anything you would like to share with the                     There was the issue about the Alameda
of our staff has put enormous pressure on                members of the ACCTLA?                                    School District teaching tolerance towards
those who remain . People are working                    I appreciate their consideration in giving                gay students or children of gay parents in
much harder and we are very mindful of                   me the “Trial Judge of the Year” award .                  the school . There were a group of parents
the strain they are under . There is no easy             And I look forward to continuing to merit                 who believed this was health education,
answer to the problem . If you don’t have                having been given it .                                    and their children didn’t need to take it
people to file papers, papers don’t get filed .


10                                                                                                                                                Spring 2011
as there is a statute that permits parents        I have a judicial assignment where, in the        of that is almost every eviction that a bank
to opt out of health education . I didn’t         morning, I have a calendar that includes          wants to perform against a sold­out mort­
think it was health education and ruled           law and motion for cases that don’t have          gagor is one where they want to do it by
that way . I thought that was an important        a direct calendar judge . On that same            summary judgment because they don’t
case even though it’s probably not on             calendar, I have petitions for writ of man­       like the results in front of a jury . I prob­
anybody’s radar .                                 date . Well, all kinds of petitions: corporate    ably see, each week, three to five summary
                                                  governance petitions, petitions for writ of       judgment motions in unlawful detainers
What has been your greatest accomplishment        mandate and petitions for administrative          by foreclosing banks . I also manage the
in your legal career?                             mandamus . Today, for example, there was          defaults in collection cases . The number
I don’t know how to answer that question .        a petition for administrative mandamus            of those cases has grown quite a bit,
In generic or overall terms, I think that         for a high school girl who had been denied        although I think the collection agency
both as a lawyer and as a judge, I have           the ability to transfer to a different high       people are making less money because
been able to obtain justice in situations         school to play basketball . She had been a        they just can’t collect on them . But it’s
where people wouldn’t always get it . We          basketball player at the old high school,         increased the work load .
live in a very formalized kind of a legal         and issues arose of whether she was
system . Is filing a lawsuit to compel            entitled to a hardship exemption from the         What are you doing in your department to mitigate
Peterbilt Motors to hire women welders            rule that you have to wait for a year before      the effects of the budget cuts that have been
obtaining justice? Well, I thought it was .       you can play varsity sports at a different        successful and that you would suggest to other
That was a case I had a long time ago —           high school . Another case on the calendar        judges?
when I worked at the Legal Aid Society            was one having to do with governance of           I don’t know that we’ve done anything
actually . That’s the theme — being able          a radio station that was a dispute among          to deal with budget cuts . The budget cuts
to implement justice .                            the people who were board members . I             in the Court in general have caused a lot
                                                  get a lot of different interesting questions .    of problems on the staff side . Mostly staff
What has been the greatest accomplishment                                                           people have picked it up and they are just
                                                  In the afternoons, I do settlement confer­
in your personal life?                                                                              doing a lot more work . We’re sort of get­
                                                  ences; sort of mediation­style settlement
Well, I have a couple nice kids but that’s                                                          ting things done but clerks make more
                                                  conferences with any variety of cases . I can’t
probably because my wife made them nice                                                             mistakes now because they are forced to
                                                  imagine a better assignment than this .
as opposed to me . That’s a hard question .                                                         be rushing all the time . It takes longer to
I’m unable to answer that . I am able, how­       What words of advice would you give lawyers       get documents imaged . In the old days,
ever, to make some pretty good salami!            who will be appearing before you?                 we wouldn’t get the file with the recent
                                                  Be prepared to have a frank conversation          filings in it . Nowadays it will take a few
What do you like to do for fun?
                                                  about the authorities that help your case         days to have the document imaged on the
I have a lot of extra curricular activities
                                                  and about the authorities that hurt you           domain system . That might mean I won’t
that I do . I build furniture . I make sausage
                                                  and why I shouldn’t be paying attention           be able to see a reply brief in a law and
and charcuterie . I like to travel . I liked to
                                                  to those . It was Melvin Belli who said it        motion matter . If I can’t see a reply brief,
do cooking of other kinds of things .
                                                  was “preparation, preparation, prepara­           then it’s difficult to make a decision .
                                                  tion .” That’s true — lawyers need to be          Although that interferes sometimes, it
I know you were in the Congo at the time of
                                                  prepared .                                        has not been a big, big problem yet . Ask
Judges’ Night.
                                                                                                    me again in a year because the State is
I wasn’t in the Congo . I was in the Ama­
                                                  How has the declining economy impacted the        planning some really big additional cuts
zon — a different jungle and a big river
                                                  cases coming through your department?             this year . I don’t know how we’re going
as well — in Peru .
                                                  We get an awful lot of unlawful detainers         to be dealing with it . I’m not an admin­
                                                  following foreclosures . It’s remarkable that     istrator in the Court so I don’t know how
What judicial assignment are you most
                                                  just five years ago, we almost never saw          to answer that at this point in time . u
looking forward to?
                                                  this animal and now it’s a daily issue . Part



The Verdict                                                                                                                                        11
                           — Meet Your New Civil Judges —




                                           Hon. Steven K. Austin
                                                     Contra Costa County

What motivated you to become an attorney?        complaining to the attorney on the other              criminal is more evidence based, I think .
After majoring in math, I majored in             side, “What am I going to do?” I was panicked         There are so many areas of law in civil
Communications Studies at UCLA . I took          about where I was going to go, and he said,           that you have to deal with as a judge . It
a Constitutional Law class and I really          “Why don’t you come work for me?” I didn’t            makes it difficult .
liked that . I had an idea that I was going      have to go through any interview process                 Each of you attorneys are kind of like
to do entertainment law because I was            or anything . I ended up switching over and           in one practice area, and so within civil
down in Los Angeles, and I liked the whole       doing insurance defense .                             there are so many different practice areas .
idea of that . My conception of it though            I did insurance defense with Jon York             So you have to know about foreclosures,
was completely wrong . I thought you just        and Scott Buresh in Berkeley for a number             and you have to know about personal
drove around in convertibles and you had         of years, then York left and I became one             injury actions, insurance coverage, and
movie stars as clients and somehow lived         of the named partners at Buresh, Kaplan,              construction practices, and many other
off of them .                                    Jang, Feller and Austin . We did insurance            different areas . It can be difficult to keep
    When I got to law school, I took an          defense, insurance coverage, and near the             up with all of them .
entertainment law class . It was in Intel­       end, I was doing more insurance coverage .
lectual Property at Hastings, taught by a                                                              What case, good or bad, stands out in your memory?
                                                 You were appointed by which governor?                 I presided over a trial that involved a
guy who used to work in a movie studio .
                                                 Governor Wilson, in 1998 .                            student at U .C . Davis who was a diver,
I realized it was all contracts, all the time,
and wasn’t quite as glamorous as I thought,      Do you ever wake up at night thinking about a case,   an Olympic caliber diver, well on that
so I changed out of that career idea .           wishing you had handled something differently?        track anyway . He was helping out at
                                                 Yes I have, but I can’t think of any off              Heather Farms pool and dove in near a
Please tell us about your work experience.       the top of my head . It’s funny . I’m just            synchronized swimming team and he hit
I started out doing plaintiff’s work and had     noticing now that I’m back to civil . I am            one of the synchronized swimmers and
a small office in San Francisco . I did that     thinking … I’m waking up more than I                  became a quadriplegic . It was a really sad
for three years . And then the two partners      was when I was doing criminal for the last            case . A memorable trial because the law­
I worked for split up, and I didn’t know         three years, which is interesting . I think           yers were just excellent on both sides, and
what I was going to do . I had a wrongful        it’s because I’m having to shift my mind              technology was kind of ahead of its time .
death case at the time that I was dealing        back over into the civil world . Many of              So both sides presented amazing tech­
with, with a firm in Berkeley . So I was         the issues are more complex; because                  nological presentations and the lawyering


12                                                                                                                                         Spring 2011
was great . The plaintiff was an amazing           practice area, volunteering and doing                      I’m one of the two appointees by the Chief
guy . Really handled his injury in a way           things . And, I’m involved in a lot of com­                Justice who are judges on there . So, I’ve
that I don’t know that I would be capable          mittee work — in a lot of different places                 been on that for a long time and it takes
of doing . Was always kind of upbeat, was          that are outside of what happens in the                    up a lot of my time .
a really nice kid . Had all the defense            courtroom . I wouldn’t be able to do that
lawyers liking him . Everybody who came            if I weren’t a judge . And I enjoy that .                  What do you like to do for fun?
in contact with him liked him .                                                                               I swim . I coach soccer, although I think
                                                   How about in your personal life? What has been             I’m going to hang up my cleats because
That may have dictated the result?                 your greatest accomplishment there?                        my youngest daughter just played her last
The jury liked him too .                           Let’s see if I can get this right . Winston                game last weekend in the rain, in Ripon .
                                                   Churchill once said that my greatest                       It was cold . So I don’t think I’m going to
What would you say has been your greatest          accomplishment in life was convincing my                   have the opportunity to coach any longer
accomplishment in your legal career?               wife to marry me . And, that is the saying                 and I always really liked that .
Oh, I don’t know . Becoming a judge,               I live by . I married beyond my … beyond
really . It has been sort of a pinnacle . I        me . My wife is wonderful . She does defense               How old is your daughter?
really enjoy it . It’s the best job ever .         work . She’s an attorney in Oakland and                    She’s graduating from high school this
    I like the difference . You see different      does asbestos defense for Berry & Berry .                  year . I’ve got all the soccer pictures there .
things come in everyday . You sit in the                                                                      But, look how little they are [gesturing
same place and the world kind of goes by .         Are you a member of any organizations?                     toward his photos] . She’s graduating now .
Everyday you’re in the same seat, watch­           The judge’s association . I was a member
ing it . You get to learn about so many            of the Association of Defense Counsel                      What judicial assignment are you most looking
different things involved in every case . So       when I was in practice . When I was doing                  forward to?
every time you have a trial, or you get            plaintiff’s work, I don’t think there was                  I was looking forward to coming back to
really involved in a motion or a settlement        any organization, or if there was, I don’t                 civil, that’s for sure, because I’m most
conference, you learn about all different          think I had enough money to be a mem­                      familiar with that . I’m really glad that
kinds of areas of life . So, that’s fun for me .   ber . Nothing else that comes to mind .                    I’m here .
I like to do that .                                As a judge, it’s hard . You can’t really be                Finally, what words of advice would you give to
                                                   involved in too many organizations because                 lawyers who will be appearing before you?
You’re kind of intellectually curious?             of ethical concerns . So, there are many
Yes . Plus, it gives you opportunities to do                                                                  Always behave in court like your mother
                                                   organizations that you can’t be a part of,                 is sitting in the back row . In fact, if you
a lot of other things . One of the things I        but I’m involved in a lot of different things .
like about being a judge is I’ve always been                                                                  behave that way in all parts of your life,
                                                      I am on the Access to Justice Commis­                   you can’t go wrong .
involved in things outside of my normal            sion, which is affiliated with the State Bar .


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The Verdict                                                                                                                                                      13
                                   — Hon. Laurel S. Brady —
                                                     Contra Costa County




What motivated you to become an attorney?       worked for several manufacturers of office    for a small firm doing medical malprac­
My mother always said, “You like to argue .     furniture . I was a district manager first    tice work . After bar passage, I ended up
You’re going to grow up to be a lawyer .”       for a manufacturer’s rep ., which handled     taking a position with the DA’s office
I heard that forever . When I finished          a number of different manufacturers, and      here in Contra Costa County . I had no
college, I took the LSAT, and later sat         then I went to work directly for one of       particular interest in criminal law, but I
down and really thought about it . I won­       the manufacturers . As their district man­    really wanted trial experience . My initial
dered, “Am I really doing this because I        ager, my territory covered all of the Bay     interest was in consumer and environ­
heard my mother say that for so long or         Area, Napa, Sonoma, all the way down          mental protection, but at the time, no
is this something I really want to do?”         to San Jose .                                 one was hiring in those areas without
    I took some time off from school and           I continued working in sales and           trial experience .
got into a completely unrelated line of         marketing as a district manager even             I decided to take the offer from the
work for about four years . I finally decided   after I started law school and went to        DA’s office here and get some trial expe­
to go back to law school to see if it was       school at night . I did both for the first    rience and ended up falling in love with
something I really wanted to do or if I         two years and then in the third year,         practicing criminal law, much to my sur­
was doing it because I always just assumed      decided it was time to get a legal job and    prise . It wasn’t even on the radar while in
I would go to law school . I made the           put into practice what I was doing in         law school . I worked for the DA’s office
decision I should at least try it . I found     school at night .                             here in Contra Costa for a little under two
that I loved it, and it did suit me . So that      So I quit the job that everyone thought    years . I then went to Solano County and
is how I ended up being a lawyer . Those        I was crazy to quit — and got a job as a      worked for the Solano County DA’s office
four years in the business world were           law clerk at the Attorney General’s office    for six years before I was appointed to the
very helpful in making the decision to          in the civil division doing consumer pro­     bench .
go to law school because I wanted to            tection . That was full time during the day
make sure I was doing it for all the right      and I went to law school at night . I did     Do you ever wake up at night thinking about
reasons .                                       that for a year or year and a half .          a case, wishing you had handled something
                                                   I then clerked full time for the civil     differently?
Please tell us about your work experience.      law and motion judge in Marin County          I stayed up at night thinking about some
For four years between college and law          for my very last semester in law school .     cases, especially in criminal where there
school, I was in the business world . I         While waiting for bar results, I worked       are very difficult issues at times . I’m trying


14                                                                                                                             Spring 2011
to think of a time where I thought I made      I would like to think that people walk           coming back to an old familiar arena . I’m
the wrong decision . I’m sure I have and       away from my courtroom feeling that way,         not sure if there is something else out
I’m sure I did some “Monday night quar­        even if they don’t like the end result .         there I am pining to do — but you never
ter backing,” stewing about a tough issue                                                       know .
in a case . If I ever felt I made the wrong    What has been your greatest accomplishment
decision or made an error, I moved to          in your personal life?                           What words of advice would you give lawyers
correct it . I called the attorneys back in,   Having a child . Being a mom is the              who will be appearing before you?
told them I had given the issue more           greatest thing in the world . It just is         Patience, civility with each other and with
thought, shared my reasoning and advised       — and it tops anything else that I can           the court — probably patience with me
that I planned to change my initial deci­      think of . Some days, it is not easy, but        because something that was at my finger­
sion . I can’t remember a specific example     you do it because the job of raising a           tips in criminal may not be in civil . I’ll
where I had to do that, but I’m sure there     child into a well­rounded adult is so            get there soon .
have been some .                               important . Watching a child develop is              I view this as a team effort to move a
                                               just amazing .                                   case through the process efficiently . It’s
What case, good or bad, stands out in your                                                      not just the lawyers, it’s all of us that
memory?                                        What do you like to do for fun?                  sheppard a case all the way through .
I’m not sure I can answer that because         We do family things — spending time              Everyone has a role to play and the attor­
those cases are still on appeal and I can’t    with my child and husband . We spend a           neys are advocating for their particular
comment on any cases that are still active .   lot of time at the park now and at kids’         side, but in terms of the mechanics of
The cases I have handled in the last eight     sports events . A lot of it is child­driven at   moving the case forward, we all should
years or more have been serious criminal       this point . We go to museums, to the            be working together to accomplish that
cases, which means they are active for a       library . My husband loves to fish, so once      goal . Working together lowers the stress
long time after they pass through my           a year, we go on a fishing trip so he can        level for everyone and we accomplish
hands . Those cases are on appeal for many     get his fix . Now he can teach our child a       more . Then we can focus on both sides,
years, so it makes it very difficult to        love of the outdoors and the art of chasing      having their position heard and a decision
answer that question, much as I would          (and catching) those “wily fishies” as he        being made based on the merits as
like to, without running afoul of the          puts it . We travel, but in a much different     opposed to spending a great deal of
ethics rules .                                 way now . We try to go places that are fun       time and effort battling each other on
                                               for all of us .                                  the minutia .
What has been your greatest accomplishment                                                          I think civility with each other and the
in your legal career?                          What judicial assignment are you most looking    court goes a long way to accomplishing
The greatest accomplishment would be           forward to?                                      better outcomes for everyone involved .
litigants walking away from your court­        Well, I’ve had a criminal assignment for         Why battle the things that aren’t worth
room, regardless of the decision you make,     virtually my entire judicial career, except      fighting about and instead focus the
feeling they had their day in court, had a     for the two years I was presiding judge .        attention on the things that are really
fair hearing with a judge who heard them       I’ve supervised a branch court in Richmond       important to your case and your client .
out, considered everything they presented      and I am enjoying my first couple months         Perhaps some people have a better sense
and made a decision, whether it went their     here in civil . This civil assignment has        of that than others . It’s a process in which
way or not . I think that more than any­       given my brain something new to chew             you advocate for your client assertively,
thing for a judge — at least for me — that     on — not necessarily completely new              but it doesn’t mean you have to beat up
is probably the greatest accomplishment .      because I did civil work long ago, it is         the opposing counsel in the process .


The Verdict                                                                                                                               15
                              — Hon. Robert D. McGuiness —
                                                               Alameda County




What motivated you to become an attorney?             What case, good or bad, stands out in your memory?   What has been your greatest accomplishment in
I grew up in a courtroom . My father was              There are a number of cases . I was a plain­         your legal career?
a judge so I had the opportunity to see               tiffs’ lawyer in a shareholder litigation            Having had the opportunity to serve
trial work at an early age . Early on, I felt         against Lucky Stores where the result was            thousands of clients in a fashion that I
it was something I was suited for and that            very beneficial to the shareholders . The            believed served their interests in a pro­
I would enjoy .                                       nature of the litigation was conducted               fessional way .
                                                      professionally at the highest level and the
Please tell us about your work experience.                                                                 What has been your greatest accomplishment in
                                                      shareholders received great benefit . They
I was a research attorney for two years for                                                                your personal life?
                                                      received a stock share price well in excess
Sonoma County Superior Court . Thereafter,                                                                 The quality and unrelenting support of
                                                      of the price at the commencement of the
I worked for a sole practitioner, who is now                                                               my family .
                                                      litigation . It was particularly meaningful
deceased . I then worked at a mid­size well­
                                                      to me because I started as a grocery clerk           What do you like to do for fun?
established firm . In 1983, based on my
                                                      with Lucky Stores at age 12, so there was            I like to travel . I would really like to do
original plan, I started my own firm .
                                                      considerable professional benefit . There            more of it . I like to watch baseball games
Do you ever wake up at night thinking about a case,   was also benefit for all the friends from my         at virtually any level . I enjoy cooking,
wishing you had handled something differently?        youth who remained employees of Lucky’s              reading, weightlifting and running . I could
Certainly . As a lawyer who dealt with                because they all had Lucky shares in their           go on and on .
hundreds of cases, I viewed the practice of           401(k) plan . Their shares went effectively
law as a learning experience every day . I            from $22 to $66 a share . Another case was           What judicial assignment are you most looking
literally had a history of cases I handled .          Estate of H. Earl Hoover . It was a 10­year          forward to?
I would keep track of what worked in that             estate litigation in Chicago, Illinois, where        That is a very timely question because I
case, what didn’t and my view at that time            I was a private attorney for the plaintiff . It      just started this assignment . I thoroughly
as to why or why not . Anyone who has                 ended up in the State Supreme Court .                enjoyed my five­year criminal assignment,
done a lot of courtroom work as a lawyer              Again, it was a litigation that had excep­           notwithstanding having very little expe­
is going to reconstruct what they either              tionally talented attorneys on both sides,           rience as a lawyer in the criminal sphere .
did or did not do . It just comes with that           advancing and protecting their clients’              I look forward to this assignment and its
territory . No specific case comes to mind .          interests, which was both challenging and            challenges, which are many .
Again, I did a lot of courtroom work and              established new law . I was also involved in
                                                                                                           What words of advice would you give lawyers
I was always working hard to both remem­              a number of appellate cases, which either
                                                                                                           who will be appearing before you?
ber what had worked and not worked . At               established law or produced a result I
                                                                                                           Be professional and thoroughly prepared .
the same time, I was always concerned                 thought was right . These include In Re
                                                                                                           You should assume the judicial officer that
with what could happen in a trial . I wanted          Marriage of Reuling, In Re Marriage of
                                                                                                           you are dealing with will be the same . u
to be able to anticipate the unexpected .             Roesch, and In Re Marriage of Seamen-Menjou .


16                                                                                                                                         Spring 2011
                                 ~ 2011 Judges’ Night ~
                                                       Congratulations to Alameda
                                                      County Trial Judge of the Year,
                                                          Hon. Frank Roesch
                                                        and Contra Costa County
                                                          Trial Judge of the Year
                                                           Hon. Barry Goode


ACCTLA Past President Elise Sanguinetti presents                                           Chief Justice Tani Cantil-Sakauye with
Hon. Barry Goode with the Trial Judge of the Year                                       2011 ACCTLA President A. Charles Dell’Ario
       award for Contra Costa County
                                                        ACCTLA thanks the
                                                        following sponsors:

       Corporate Gold Sponsor                                Gold Sponsors                        Corporate Silver Sponsor
           ADR Services, Inc.                        Law Offices of Richard J. Baskin                          JAMS
             Judicate West                          Casper, Meadows, Schwartz & Cook
                                                    Law Offices of Stephen H. Cornet
                                                           A. Charles Dell’Ario
                                                       Furtado, Jaspovice & Simons
                                                     Gagen, McCoy, McMahon, Koss,
                                                          Markowitz & Raines
                                                     Gillin, Jacobson, Ellis & Larsen
                                               Gwilliam, Ivary, Chiosso, Cavalli & Brewer
                                                      Hildebrand, McLeod & Nelson
                                                    Kazan, McClain, Lyons, Greenwood
                                                               & Harley
        Justice James Richman (left)                  Law Offices of John Schreiber           Peter Hinton (left) with Kathleen Courts
             and Hon. Jon Tigar                                                                          and Steve Kazen
                                                      Law Offices of Joseph Tomasik
                                                     R. Lewis Van Blois & Associates


           Silver Sponsors                                                                               Wine Sponsor
    Law Offices of Lyle C. Cavin                                                                   Hinton, Alfert & Sumner
         The Derby Law Firm
   Law Offices of JoAnn Kingston
          Liberty Law Offices                                                                 To view other pictures from this event, or to
                                                                                            order any pictures from the photographer, go to
                                                                                            http://www.shutterfly.com/pro/oasiiphotos/2009

                                                        Jim Brosnahan, with his wife,
                                                           Hon. Carol Brosnahan


The Verdict                                                                                                                             17
                                                                                                            MEMBER
                                                                                                               news



ON THE MOVE                                   accomplishments he has made to the firm        SETTLEMENTS
Jerome Fishkin of Walnut Creek’s Fishkin      and to the legal community .                   Auto v. Bicycle
& Slatter LLP has been elected president         With its additional principals — Elise      Jerry Doe v. Peebles
of the Association of Discipline Defense      Sanguinetti and David Pogrel — Hinton,         Contra Costa County Superior Court
Counsel (ADDC), attorneys who specialize      Alfert, Sumner & Kaufmann offer clients        Settlement: $1,100,000 .00
in defending other attorneys at the State     over 100 years of combined litigation ex­      Attorney: Richard J . Baskin (Law Offices
Bar of California .                           perience . Associate Mark T . Baller joined    of Richard J. Baskin)
                                              the firm in November of 2010 .
The law firm of Hinton, Alfert & Sumner is       Hinton, Alfert, Sumner & Kaufmann is        The plaintiff, 75­year­old Jerry Doe, a real
pleased to announce the firm’s name change    dedicated to representing individuals who      estate professional, was wearing a helmet
to Hinton, Alfert, Sumner & Kaufmann .        have suffered significant personal or finan­   and riding his bicycle northbound on
   Aaron Kaufmann started up the firm’s       cial injuries and workers who have been        Danville Blvd . in Alamo at the start of a
employment law practice in 2003 . He has      denied workplace rights and protections .      30­mile bike ride . Jerry is an experienced
served as class counsel on scores of cases,      The firm’s personal injury and wrong­       bicyclist and was in excellent condition .
recovering millions of dollars in back        ful death practice focuses on product          At age 70, he rode his bicycle 500 miles
wages and expenses on behalf of workers .     liability, motor vehicle accidents, unsafe     across Italy . He completed 37 marathons .
He has also successfully prosecuted claims    highway design, industrial accidents,          On a weekly basis he rode his bike 30
for individuals who have suffered unlawful    spine injury, brain injury and wrongful        miles and ran 40 miles .
discrimination and retaliation in the work    death cases, elder and sexual abuse, neg­          The defendant did not see plaintiff in
place .                                       ligent security, government tort liability,    the bike lane and made a left turn without
   Mr . Kaufmann is a frequent writer         insurance bad faith, and legal malpractice     yielding to him . Defendant struck plain­
and lecturer on wage­and­hour laws and        claims .                                       tiff, cracking his helmet and fracturing
employment class action litigation, and          The employment practice focuses on          his back .
currently serves as the Co­Editor­in­Chief    prosecuting class actions to enforce over­         Plaintiff Doe experienced loss of con­
for the American Bar Association’s treatise   time, expense reimbursement, employee          sciousness at the scene and had no recol­
on the Fair Labor Standards Act . The         misclassification and other wage and           lection of the accident . He was transported
addition of Mr . Kaufmann to the firm         hour laws, and representing individuals        to John Muir Medical Center with a diag­
name reflects the importance of the           with wrongful termination, discrimina­         nosis of “closed head injury with amnesia,
employment law practice to the firm,          tion, whistle­blower and other employ­         fracture, a large subgaleal hematoma,
and the outstanding contributions and         ment retaliation claims .                      fractures of the left transverse process at



18                                                                                                                          Spring 2011
T4, comminuted fracture at T5, rib frac­        Construction                                    On eastbound Highway 132 near Tracy,
ture and abrasions to right knee and left       Lew Van Blois and Tim Knowles settled           plaintiff Acacia Roth was driving her
hand .”                                         a construction accident case in late March      mother­in­law, Donna Roth, and her nine­
    He was transferred to ICU and was to        2011 for over $1,300,000 . The case was set     month­old son, Wyatt Roth, in her 2007
undergo surgery for ORIF of the thoracic        for trial on April 4, 2011 in San Francisco .   Chevy Suburban . The plaintiffs were on
fractures, a T5 laminectomy and segmen­         They represented a 51­year­old heavy            their way to visit a family member and
tal fixation from T2 to T7 . During surgery,    equipment operator for his injuries that        were preparing to make a left turn when
screws were inserted at T6 and T7, hooks        occurred on January 28, 2008 when a             they were hit by the defendant’s semi­
at T2 through T4 and grafted bone was           multi­story boiler structure collapsed          truck, which was traveling at nearly 60
mixed with preexisting bone . He was then       prematurely during a demolition project         mph and carrying a full cargo . The plain­
transferred to John Muir Hospital Acute         at the Hunters Point PG&E facility . The        tiff’s vehicle was crushed by the impact
Rehabilitation Unit for rehabilitation,         plaintiffs claimed that the structural          and propelled across the highway, coming
including physical and occupational             engineer and PG&E negligently planned           to rest on the opposite shoulder of the
therapy, speech therapy, cognitive screen­      and supervised the demolition of the            roadway .
ing and neuropsychological evaluation .         structure . The settlement provided that            Donna Roth suffered a traumatic brain
    At the time of discharge it was noted       the plaintiff would receive all workers’        injury; Acacia Roth suffered bilateral crush
that his attention, concentration, reading      compensation benefits without any credits       injuries to her legs; and Wyatt Roth suf­
and visual functions were impaired . Neuro­     to the workers’ compensation carrier from       fered a frontal subdural hematoma .
psychological testing confirmed slowness        the settlement .                                    Donna Roth’s case settled for $5,375,000 .
in process and verbal memory, alterations                                                       The settlement covers only her claims,
in his functioning ability, short­term          Semi-Truck v. Auto                              which were $452,000 in past medical
memory, concentration skills and word           Donna Roth, et al., v. Abel Magallanes,         expenses, and $2,000,000 in future care .
finding difficulty . He has permanent pain      Classic Cartage Trucking Corporation            The cases of Acacia Roth and her son are
in the upper back and neck and has con­         San Joaquin County Superior Court               pending .
tinued difficulties with activities of daily    (39­2009­00215811)
living, such as lifting, sitting, standing or   Settlement: $5,375,000 .00                      Sexual Harassment
walking .                                       Attorneys: Michael D . Meadows (Casper,         Lisa Capocci v. City of Concord
    The parties reached a settlement of         Meadows, Schwartz & Cook) – plaintiffs;         Contra Costa County Superior Court
$1 .1 million .                                 John Cotter, Joshua Rose (Diepenbrock &         (C09­02137), Hon . Judith Craddick
                                                Cotter) – defendants                            Settlement: $750,000 .00 



The Verdict                                                                                                                                19
Attorneys: Stan Casper, Nick Casper               Scott Desmond and Matthew Burton,                    Following their standard practice, the
(Casper, Meadows, Schwartz & Cook), Toni          employed firefighters of the Contra Costa        CCRFCC dispatcher called the residents
Lisoni – plaintiff; Maureen McClain,              County Consolidated Fire District (CCCFD)        at 149 Michele Drive to verify the alarm;
Constance Norton (Littler Mendelson),             responded to a fire at 149 Michele Drive         that call resulted in a busy signal . The
Mark Coon (Office of the City Attorney,           in San Pablo . Upon arriving at Michele          dispatcher then made a second call which
Concord) – defendant                              Drive, Desmond and Burton entered the            was not answered . At 1:43:42, more than
                                                  residence to save the occupants . A fire gas     9 minutes after the initial call was placed
Lisa Capocci, a 33­year­old female, was           ignition flashover occurred, killing both        to the SAI representative, the CCRFCC
employed as a patrol officer for the              firefighters, as well as the two occupants .     initiated a residential fire alarm dispatch .
Concord Police Department for four­and­               That same day at 1:34:27, SAI received           Plaintiff alleged that had the SAI rep­
a­half years . She resigned from her job in       an automated smoke alarm signal from             resentative accurately reported a fire, the
July of 2010, claiming an intolerable work        that address . Upon receipt of that alarm,       call would not have been placed on hold,
environment .                                     the SAI customer service representative,         would have been given a higher priority,
    The plaintiff alleged that her supervisor,    located in Ft . Lauderdale, Florida, activated   and the response would have been much
Michael Hansen, made improper sexual              a two­way intercom inside the residence          greater in magnitude . Rather than sending
advances toward her . Further, she claimed        and spoke with Mrs . Moore . The repre­          one engine with three firefighters, CCCFD
that she suffered retaliation when she com­       sentative asked if everything was okay .         policies and procedures would have
plained about the conduct because Hansen          Mrs . Moore replied, “No, we have a fire .”      included three engines, a quint (a tanker
and others allegedly filed unfounded inter­           The SAI representative then asked if         truck equipped with specialized equipment
nal affairs investigations against her . She      the resident wanted her to call the fire         such as chainsaws), and a battalion chief
also contended that other officers took too       department, to which Mrs . Moore replied         in a separate vehicle . In other words, 16
long to back her up when she was called           “please, please .” Approximately 2 minutes       firefighters including a chief, rather than
to duty .                                         and 12 seconds after the SAI representative      three firefighters with no chief would have
    The defendant argued that the police          was told that there was a fire, the Contra       responded to the fire on 149 Michele Drive
department treated the plaintiff with             Costa County Regional Fire Communica­            within four minutes of taking the call .
fairness and looked into her complaints .         tions Center (“CCRFCC”) finally received             At 1:46:11, 2 minutes after Engine
Also, the defendant asserted that any             a call from the representative who told          Co . 70 had been dispatched, the call was
inquiry against plaintiff was justifiable         them specifically “Okay, I’m calling to          upgraded from a fire alarm to a residential
and based upon performance issues .               report a fire alarm .” She called the fire       structure fire .
    After the third day of trial, the parties     district on a non­emergency number and               At 1:51:23, Captain Burton trans­
reached a settlement totaling $750,000,           never told the district that she had com­        mitted an updated report indicating that
of which $500,000 was attorneys’ fees .           municated with the resident, or that the         “we have two people inside” and both he
                                                  resident had reported a fire .                   and Scott Desmond were making entry in
Wrongful Death                                        Given that the SAI representative had        an attempt to save them . After knocking
Carolyn Desmond, et al. v. Security Group LLC,    reported a fire alarm rather than accurately     down the fire in the living room, Burton
Security Associates International, Inc., et al.   reporting a fire, the CCRFCC dispatcher          and Desmond exited 149 Michele Drive
Contra Costa County Superior Court                placed the call on hold to answer a higher       and retrieved a thermal imaging camera
(C08­02092)                                       priority 911 emergency call . The call was       to assist them in assessing the situation .
Settlement: $4,600,000 .00                        on hold for 4 minutes and 51 seconds .           At 1:57:13, the body of Mrs . Moore was
Attorneys: Andrew C . Schwartz, Thom                  At 1:42:16, a second dispatcher retrieved    found in the residence and removed by
Seaton (Casper, Meadows, Schwartz &               the call on hold from SAI and once again         members of Engine Co . 73 .
Cook) – plaintiffs; Bradley M . Zamczyk           the SAI representative indicated that she            Burton and Desmond then re­entered
(Hinshaw & Culbertson, LLP) for Securities        was calling to report a fire alarm, not a        the residence in an attempt to rescue Mr .
Associates Inc . (SAI); Jill Rizzo, Charles       fire . Once again, she failed to report that     Moore from the fire . At 1:59:30, Unit 76
H . Horn (LeClairRyan LLP) for Pinnacle           she had communicated with the residents          arrived when it appears that a flashover
Security LLC – defendants                         and was aware of a fire .                        occurred at 149 Michele Drive . It is believed


20                                                                                                                                  Spring 2011
that Scott Desmond and Matthew Burton
died as a result of this flashover .               ACCTLA ALAMEDA-CONTRA COSTA TRIAL LAWYERS’ ASSOCIATION
   The case settled at mediation with Hon .
Ronald Sabraw (JAMS) for $4 .6 million .                                 BENEFIT S OF MEMBERSHIP
Pinnacle contributed $2,600,000 and SAI
contributed $2,000,000 .                           •	Become	 a	 sustaining	 member	 and	 reap	 the	 benefits!	 They	 include	 free	
                                                     admission to Judges’ Night and the What’s New in Tort & Trial seminar.
Wrongful Death                                     	 See	page	2	for	the	tear-out	Year	2011	Dues	Notice.
Lew Van Blois and Tim Knowles settled              •	Become	 a	 mentor	 or	 use	 ACCTLA’s	 mentoring	 program.	 Both	 will	 help
a wrongful death case against Alameda              	 you	become	a	better	lawyer.	
County and Pacific Surfacing, Inc . in late
                                                   •	   Publish	your	firm’s	recent	news	or	successes	in	The Verdict.
January 2011 for $2,650,000 . They rep­
resented the husband and children of a             •	Membership	also	entitles	you	access	to	ACCTLA’s	web	listing	of	all	the
34­year­old woman who was struck by a              	 members	of	our	organization.
Ford F450 truck while she was jogging
                                                   •	Benefit	from	the	experience	and	advice	of	other	members	by	participating
on the shoulder of Patterson Pass Road in
                                                   	 in	the	LISTSERV!	
Alameda County . The uninsured driver
claimed he was not working for his                           For	further	information	on	any	of	the	above,	please	contact:
employer that day and was on his way                                  Pat	Parson,	ACCTLA	Executive	Director
home when the accident occurred . Plain­                              (510)	538-8286	•	triallawyersacc@aol.com
tiffs contended he had been called to do
                                                                        Please visit our website . . . www.acctla.org
a special task for his employer . The plain­
tiffs also contended the road was in a
dangerous condition and constituted a

                                                              FishkinSlatter LLP
concealed trap . The case settled shortly
before the February trial date .
                                                                     attorney professional responsibility and conduct

VERDICTS
Asbestos                                                      ATTORNEY CONDUCT MATTERS
Ricker, et al v. Allied Packing & Supply, et al.
Alameda County Superior ( RG10496251)                       State Bar Defense Ethics Advice Expert Witness
Hon . Lawrence John Appel
Verdict: $5,482,047 .54                                                         J EROME F IS HKIN
                                                                          L IND SAY K OHU T S L ATTER
Attorneys: William Ruiz, Ian Rivamonte,
                                                                             S A MUEL C. B ELLICINI
Gordon Greenwood, and Frank Fernandez                                                Attorneys at Law
(Kazan, McClain, Lyons, Greenwood &
Harley) – plaintiff; Douglas Wah, Sandy                       Every few days, new court decisions affecting California
                                                             attorney conduct are filed. We summarize these cases on
Liu, Thomas Tarkoff (Foley & Mansfield),                             a What’s New page at www.fishkinlaw.com
Peter Bonis (Law Offices of Peter Bonis),
David Gabianelli, Amy Rose (Squire Sanders
                                                              Jerome Fishkin is A-V Rated by Martindale-Hubbell
& Dempsey) – defendant
                                                                            1111 Civic Drive, Suite 215
Plaintiff Ronald Ricker was exposed to                                    Walnut Creek, California 94596
asbestos from Rockbestos Surprenant Cable                                T 925.944.5600 F 925.944.5432
                                                                              www.fishkinlaw.com
Corporation (RSCC) asbestos insulated
wire products from 1966­1971, which 


The Verdict                                                                                                                           21
was brought home on the clothing, person,     Verdict: $50,000 .00 (policy limits)              FELA
and personal effects of his mother, Clara     Attorneys: Nick Casper (Casper,                   Martin v. BNSF Railway Company
Ricker, when she worked at Varian, Inc.       Meadows, Schwartz & Cook) – plaintiff;            Los Angeles County Superior Court
in Napa and Walnut Creek; and from his        Fulvio Picerno, Steven Toschi (Toschi,            Verdict: $4,931,549 .00
own employment as a machinist at Varian,      Sidran, Collins & Doyle) – defendant              Attorneys: Anthony S. Petru and Victor A.
Inc . in from 1969­1971 . He was diagnosed                                                      Russo (Hildebrand McLeod & Nelson, LLP) –
with mesothelioma, an asbestos­caused         The plaintiff, 44­year­old hardwood floor­        plaintiff
cancer, in October of 2009 . Evidence at      ing employee Armando Cervantes, was
trial showed that the cutting and stripping   making a lumber delivery in a company             Mr . Martin was injured on November 14,
of RSCC’s asbestos insulated wire products    Ford F­250 Super Duty truck, from Rich­           2008 while working as a switchman for
released dangerous levels of asbestos dust    mond to Sonoma . While approaching the            BNSF at its Hobart Yard in Commerce,
and that it was a cause of Mr . Ricker’s      Richmond­San Rafael Bridge on Interstate          California . The accident occurred as a
mesothelioma . The evidence also showed       580, the plaintiff collided with defendant’s      result of poor and overcrowded radio
that RSCC specialized in asbestos insu­       vehicle in the toll plaza where the FasTrak       traffic and a defective radio, which severely
lated wire and cable products, and even       lane split from one to two lanes .                limited the crew to two operative channels .
incorporated the word “asbestos” in the           The plaintiff alleged that he was             Due to excessive radio traffic, the engineer
name of its brand “Rockbestos,” but           driving in the #1 FasTrak lane, with              mistakenly understood a 30 railcar count
ignored all the medical and scientific        defendant driving behind him . The plain­         as a request to change radio frequencies .
information about the health hazards          tiff contended that as the FasTrak lane           He did so . Mr . Martin soon saw a constant
associated with asbestos dust for over 60     widened and began to split into two               line of locomotives on the track ahead of
years . RSCC continued to sell its asbestos   FasTrak lanes at the bridge toll plaza,           him and radioed the engineer to prepare
insulated wire products until 1986, and       defendant attempted to pass plaintiff’s           to stop . The engineer heard nothing as
did not warn its customers or end users       truck and tried to establish himself in           he had already changed frequencies . Mr .
about asbestos­related health hazards         front of the plaintiff . Plaintiff alleged that   Martin’s car came to a stop . Immediately
until 1979 .                                  the defendant’s maneuver resulted in the          prior to the collision and to avoid being
    The jury found that RSCC’s defective      two vehicles colliding .                          crushed, Mr . Martin, 28 years old at the
design of its asbestos insulated wire prod­       The defendant contended that he was           time of the accident, jumped from the
ucts, its failure to adequately warn con­     driving in the #1 FasTrak lane, and that          locomotive platform and suffered a grossly
sumers and customers of the dangers its       the plaintiff was driving in the #2 lane          fractured right ankle . The severity of the
wire products posed, its negligence, and      to the right . The defendant alleged that         ankle fracture and ongoing pain required
its malicious and oppressive misconduct       the plaintiff crossed the solid white line        Mr . Martin to undergo an ankle fusion
all contributed to causing Mr . Ricker’s      separating the lanes and merged into the          surgery . His foot and ankle may ultimately
mesothelioma, and was 33 percent respon­      defendant’s vehicle in the FasTrak lane           require amputation . He continues to suffer
sible for all the damages caused by Mr .      near the toll plaza .                             from posttraumatic stress disorder .
Ricker’s mesothelioma . The jury also found       After a three­day jury trial, the jury           The trial lasted ten days and the jury
that RSCC acted with malice and oppres­       rendered a verdict for the plaintiff, find­       deliberated for one­and­a­half days before
sion, requiring an additional phase of the    ing defendant 90% at fault . Prior to trial,      rendering a verdict of $4,931,549 .00 to
trial to determine a punitive damages         the parties stipulated that if defendant          compensate Mr . Martin . BNSF’s formal
amount . Shortly after the second phase       was found negligent, insurance carrier            offer to compromise was $650,000 and
of the trial started, the case was resolved   would pay $50,000 in policy limits; accord­       was made contingent upon on Mr . Martin’s
to the parties’ mutual satisfaction .         ingly, there was no evidence of damages           resignation from employment with BNSF .
                                              introduced .
Auto v. Auto                                      The jury poll was 12­0 on finding the         Strict Products Liability, Negligence,
Armando Cervantes v. Ronny W. Sono            defendant negligent; and 10­2 on fault            Intentional Concealment
Alameda County Superior Court                 apportionment .                                   Bankhead, et al. v. Allied Packing & Supply, et al.
(RG09484889), Hon . Ronni MacLaren                                                              Alameda County Superior Court


22                                                                                                                                  Spring 2011
(RG10502243), Hon . Robert B . Freedman         whether to warn about the health hazards          The trial lasted 33 days . Phase 1 of the
Attorneys: Joseph Satterley (Sales &            from its brakes . Rockwell knew starting       jury deliberation took four­and­a­half days,
Satterley), Louisville, KY; Leigh Kirmsse,      in the early 1970s that its employees were     while Phase 2 took two hours .
Justin Bosl (Kazan, McClain, Lyons,             exposed to dust from Abex and Carlisle
Greenwood & Harley) – plaintiff; John           brakes, but did nothing to warn its cus­       Upheld
Brydon (Brydon, Hugo & Parker), San             tomers of the same hazards . As early as       Shelby v. Seariver Maritime, Inc. 2011
Francisco (Abex); Frank Berfield                1977, Rockwell learned that one of its         (WL 576569)
(McKenna Long & Aldridge), San Francisco        employees who handled brakes was diag­         Attorneys: Lyle Cavin, local trial counsel
(ArvinMeritor & Kelsey Hayes); Joseph           nosed with mesothelioma, the same disease      for Shelby; Chuck Dell’Ario, appeal
McGuire, Mt . Laurel, NJ and Joseph             Mr . Bankhead developed . Despite their
Dioszeghy (Rasmussen Firm), Kansas City,        knowledge of the hazards of asbestos,          When Mack Shelby signed on as an able­
MO (Carlisle) – defendants                      Carlisle and Pneumo Abex continued to          bodied sailor on Exxon oil tankers, he was
                                                sell asbestos­containing brakes until 1987;    healthy . He devoted years of exemplary
Plaintiff, Gordon Bankhead worked from          Rockwell did not cease selling asbestos        service .
1965­1999 in the service and repair of          brakes until 2000 .                                Exxon long knew of the dangers of
heavy­duty vehicles as a “parts man” and            The defendants argued that brake           benzene to its sailors yet never effectively
spent most of his career at Sea­Land Ship­      mechanics are not at an increased risk of      protected or warned them as its and
ping Company in Oakland . He regularly          developing mesothelioma, that the chryso­      the Coast Guard’s regulations required .
handled asbestos­containing brakes, and         tile asbestos in their brakes does not cause   Exposure limits were merely something
was present for the inspection, replacement,    mesothelioma, and that exposure to their       “to shoot for .” In 2003, he contracted
grinding, and blowing out of asbestos­          products was de minimis .                      kidney cancer from persistent benzene
containing brakes . All of these activities         The jury found that all defendants         over­exposure and lost a kidney . A San
caused him to breathe deadly asbestos           defectively designed their brakes, failed      Francisco jury awarded him $8 million in
dust . Abex and Carlisle manufactured the       to adequately warn consumers and cus­          economic and non­economic damages .
vast majority of the brake linings Mr .         tomers of the dangers the brakes posed,            On appeal, Exxon contended that the
Bankhead was exposed to, which in turn,         were negligent, and intentionally concealed    trial court erred in admitting the testimony
Rockwell and Fruehauf attached to brake         information that could have prevented the      of Shelby’s expert, claiming his opinions
shoes and axles that were sold to Mr .          harm Mr . Bankhead suffered, all of which      lacked foundation . It also claimed that no
Bankhead’s employers .                          contributed to causing Mr . Bankhead’s         evidence supported the economic damages
    Gordon Bankhead was diagnosed with          mesothelioma .                                 and that Shelby’s lawyers inflamed the jury
mesothelioma, an asbestos­caused cancer,            The jury apportioned 30% liability         with misconduct during closing argument .
in January of 2010 . Suit was filed on behalf   each to Carlisle and Pneumo Abex, 15%              The court of appeal rejected all the
of Mr . and Mrs . Bankhead in March of          each to ArvinMeritor and Kelsey­Hayes,         arguments . It concluded that the expert
2010, and trial commenced on October            and 10% to Mr . Bankhead’s employers . The     opinions were predicated on the very types
25, 2010 . Evidence at trial showed that        jury awarded Mr . Bankhead $1,470,000          of matters on which experts rely . It found
Pneumo Abex had been aware of the               for his past and future economic loss, and     the economic damages were properly
deadly health effects of breathing asbestos     $1,500,000 for his pain and suffering .        supported and that Exxon had waived
dust since at least the 1940s, but that         The jury also awarded his wife Emily           whatever improprieties may have occurred
Pneumo Abex did not begin warning its           Bankhead $1,000,000 for her loss of her        during oral argument by failing to request
customers of those effects, if at all, until    husband’s support and companionship .          an admonition . u
years after Mr . Bankhead was exposed to        The jury found that defendants’ actions
the asbestos­containing brakes it made          were malicious, fraudulent, and/or oppres­                    Got News?
and sold .                                      sive . The jury assessed $4,500,000 in puni­
                                                                                                     If you have some member news that
    Abex and Carlisle were involved in          tive damages against ArvinMeritor, Inc . and        you’d like to share, please email it to:
discussions within the Friction Materials       $9,000,000 in punitive damages against
                                                                                                  suizilaw@gmail.com – or – rcsanto44@gmail
Standards Institute in the 1970s about          Pneumo Abex LLC .


The Verdict                                                                                                                                    23
                    ACCTLA
           Alameda Contra Costa Trial Lawyers’ Association

       FOURTH ANNUAL SPRING COCKTAIL RECEPTION
                          WITH SPECIAL GUEST
     CONTRA COSTA COUNTY TRIAL JUDGE OF THE YEAR
                        BARRY GOODE
            BE THERE FOR THIS SPECIAL RECEPTION.

                            All ACCTLA members,
               Superior Court Judges and Commissioners
           from Contra Costa County and Alameda County,
        Appellate Justices, Northern District Federal Judges,
                   Magistrate Justices and their guests
                            are invited to attend.

               Thursday, May 5, 2011
                 6:00 pm - 8:00 pm
            Lafayette Park Hotel & Spa
      3287 Mount Diablo Boulevard, Lafayette, CA
     Please join us for wine, beer, soft drinks and hors d’oeuvres.

            Please respond by Monday, May 2, 2011 to Pat Parson
                   triallawyersacc@aol.com or 510-538-8286.


                     If you are not a member of ACCTLA,
       contact Pat Parson for an application or pay dues at the door.
     ACCTLA will also have an annual fall cocktail reception in Alameda County.
24                                                                            Spring 2011
                      Stay tuned for further information!

				
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