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
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theVerdict Spring 2011
From the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Charles Dell’Ario
Editors’ Corner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Suizi O. Lin and Rica Cruz Santo
Sustaining Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Member News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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
Photos from ACCTLA’s 2011 Judges Night . . . . . . . . . . . . . . . . . . . . 17
Oasii Lucero, Oasii Photography
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?
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
Walker & Toth, LLP
oldest partnership in Contra Costa County THE VERDICT, please email it to:
p 925.283-6816 • f 925.283-3683 Suizi Lin, firstname.lastname@example.org
3445 Golden Gate Way, P Box 479
.O. - or -
Lafayette, CA 94549-0479 Rica Cruz-Santo, email@example.com
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 firstname.lastname@example.org email email@example.com A . Charles Dell’Ario, President
Lyle C . Cavin, President-Elect
www.adrservices.org Alexis McKenna, Treasurer
COST-EFFECTIVE DISPUTE RESOLUTION
Jim W Yu, Secretary
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
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
William Gagen, Jr .
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
$425/hour $400/hour $400/hour $425/hour $425/hour
A publication of the AlamedaContra Costa
Real Estate Law Trial Lawyers’ Association
- Since 1970 -
Litigation • Transactions • Leases Suizi O. Lin
Law Offices of Suizi Lin
Case Referrals and Associations Welcomed 510 .909 .8224
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The Verdict 5
ACCTLA’s Editors’ Corner
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
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 .
If you’re interested in authoring an article for an upcoming issue or providing witticisms
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
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.
STEPHEN H. CORNET William Ruiz
Anthony S. Petru
A. CHARLES DELL’ARIO Gloria C. Amell
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
ELLIS & LARSEN David McClain JOSEPH E. TOMASIK
Andrew R. Gillin Denise Abrams
Ralph Jacobson Dianna Lyons R. LEWIS VAN BLOIS
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
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
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
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 —
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
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
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
Jim Brosnahan, with his wife,
Hon. Carol Brosnahan
The Verdict 17
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
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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 • email@example.com
tiffs contended he had been called to do
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a special task for his employer . The plain
tiffs also contended the road was in a
dangerous condition and constituted a
concealed trap . The case settled shortly
before the February trial date .
attorney professional responsibility and conduct
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
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 .
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
firstname.lastname@example.org – or – rcsanto44@gmail
Standards Institute in the 1970s about Pneumo Abex LLC .
The Verdict 23
Alameda Contra Costa Trial Lawyers’ Association
FOURTH ANNUAL SPRING COCKTAIL RECEPTION
WITH SPECIAL GUEST
CONTRA COSTA COUNTY TRIAL JUDGE OF THE YEAR
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
email@example.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!