Friday, December 19, 2008

They May Have Come To The Wrong Conclusion

I do not always agree with the California Supreme Court. They have extended privilege protection in ways that seem to penalize tenants, and embolden landlord's to abuse the civil litigation process. In what looks like their latest mistake, they have allowed a lawsuit to go forward against a rescuer.

Under California law, specifically Health and Safety Code §1799.102, people who are performing emergency care at the scene of accident are immune from civil suits as long as the emergency care was rendered in good faith and not for compensation. Essentially, if a person collapses, and you give them CPR, and something bad happens as a result, then the person giving the CPR is not liable for damages.

Now, in the case of Van Horn v. Watson, the California Supreme Court ruled that this immunity does not extend to people who perform the rescue of the person in need. In Van Horn, two women (Van Horn and Torti) were riding in a car when they ended up in a accident. Torti, being less injured, thought she saw smoke coming from the car. So she pulled her friend, Van Horn form the car. However, because of her condition, and the movements in pulling her out of the car, Van Horn was left a parapalegic.

The Van Horn decision, written by Justice Ching, held that the statute was meant to be construed in a particular fashion. Specifically, Ching wrote, "the 'scene of an emergency' ... means a scene where 'an individual has a need for immediate medical attention' ... it logically follows that the Legislature intended for the phrase 'emergency care' ... to refer to the medical attention given to the individual who needs it."

Seems to me that the statue reads "No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission." Yes, it is contained in a section of the code which deals with doctors and nurses, however, the law states that it is dealing with "emergency care at the scene of an emergency". A plain reading would indicate that this means all emergency care at the scene of the emergency, and not simply the emergency medical treatment.

Given the reading that the majority (the decision was a 4-3 split) gives this code section, it could have the effect of making people even more likely not to help people in an emergency situation. It appears that the majority's reasoning for its decision, that the legislative history and placement of the statute, conflicts with the facts. The statute, as the majority acknoweldges, was meant to encourage people to be good samaritans and render assistance. However, they chose to read it narrowly on the grounds that it was in a section of the Code dealing specifically with medical care.

Part of me thinks that the Justices were uncomfortable giving immunity to someon who was probably drunk and/or high at the time that the accident occurred. (See the facts fo the case to see how the participants of the suit had spent their night.)

Basically, I think that the court missed a chance to shield bona fide good samaritans from lawsuits. Unfortunately, I think its going to end up hurting more people in the long run. (Shocker, I am taking the defense side on this one.)

Thursday, December 18, 2008


Imagine the following:

A person goes out driving with a blood alcohol content that is approximately three times the legal limit. The person while driving manages to get into a car crash with a large truck. As a result of said accident, the passenger in the car, the boy-friend of the driver in fact, dies in the crash. The driver is then arrested, prosecuted for DUI and manslaughter, convicted and sentenced to 4 months incarceration with an additional 8 years of probation.

Having heard all that, what do you think the next action the driver would take?

If you said, sue the driver of the truck which they hit, you'd be right.

Apparently Elizabeth Shelton was driving drunk on October 23, 2007. In her lawsuit, filed in October of this year, she claims that the driver of the truck she hit was driving recklessly and that he was the reason that for the accident which resulted in the death of her boyfriend, Matthew McNiece.

Talk about Chutzpah.

Sort of Important to San Francisco Renters

Now, this is something that I have been aware for a while, but that's because in my practice I deal with a lot of landlord tenant cases on the side of the tenants. However, most lay people probably would be confused by this, especially people who rent in San Francisco.

As renters might have noticed from the falling stock market, the upsurge in bank failures, and the rash of foreclosure notices that have been going around for a while, your landlord might be on the verge of losing their property through foreclosure. For people who do not live in rent controlled jurisdictions, this can be a problem. Basically a renter's lease is typically, though not always, subject to being extinguished by the foreclosure. Apparently its so much of a problem that the San Francisco Chronicle let one of its columnists devote some of his time to writing about it for a change.

However, this is not the case in San Francisco, and to my understanding in other areas which require good cause evictions. In San Francisco, a person who rents in a multi-unit building (i.e. at least two units) may only be evicted where good cause exists. The list of good causes reasons includes: failure to pay rent, nuisance, using the property for illegal activity, illegal sublets, as well as owner-move in, and substantial renovations. The full list is contained within San Francisco Administrative Code, section 37.9.

Now, if you are a renter in San Francisco, and you do receive a notice to quit from someone the first thing you should do is get some counseling about what your options are. In San Francisco, the places to go for help include (this is only for people who live in San Francisco):

San Francisco Tenant's Union - (415) 282-6622
San Francisco Rent Board - (415) 252-4602
San Francisco Bar Association Lawyer Referral Service - (415) 989-1616
San Francisco Bar Association VLSP (pro bono referrals based on meeting certain eligibility standards) - (415) 989-1616
San Francisco Eviction Defense Collaborative - they do drop in work and do not typically give advice over the phone. They are located at 995 Market Street #1200, San Francisco, California.
In order to make sure that you don't end up on the wrong end of an unlawful detainer, or even worse abandoning a tenancy based on a bad notice to quit because of a misunderstanding of the law, you need to be proactive. If you get a notice, contact someone who knows landlord tenant law (either on the list above or another attorney). Do not rely on what the landlord's attorney and/or agents tell you. They do not represent you. Sticking your head in the sand will not just make it go away. A rent-controlled tenancy, particularly in these times is a valuable commodity for a renter. Don't lose it by not taking the steps you need to take in order to protect it.

(Disclaimer: this, like any other postings I make on this site, does not constitute a legal relationship, or the creation of an attorney-client relationship. This article, like all others on this website, are for informational purposes only, and should not be relied upon as legal advice about specific situations. Readers should consult with a licensed attorney if they need help with legal matters.)

Tuesday, December 16, 2008

No one to blame but myself I suppose

I agree to partner with another attorney. I prepare all the fracking paperwork that is necessary for this other attorney to sub-in. I sign off on the paper work. I give said paperwork to the partner-attorney.

Apparently partner attorney felt that filing half of the paperwork was enough.

Now I know why I have been getting nothing the last few weeks.

Only myself to blame. Should have double checked.

(Mrs. Angrybell disagrees. She is of the opinion that adults should do what they agree to do. Its why adults are allowed to eat candy for breakfast and stay up until 3 am if they want to.)

Now I have a mess to fix.

Tuesday, December 09, 2008

Think Before You Drop The Next F-Bomb (or How to Get The Judge to Overreact)

Overreaction? You decide.

Here is the situation, two lawyers finished up their argument and started to walk away. One lawyer says to the other, commenting on the evidence of a witness, "He's a f--king liar." The judge, hearing this, asks the lawyer to confirm what the lawyer said. The lawyer answers the judge that, yes, he did in fact use the word in a statement to opposing counsel.

The judge finds the lawyer in contempt. He sentences him to 6 months in jail.

And no, this is not a hypothetical. It happened a few days ago in a Cincinnati courtroom. Apparently Michael Brautigam said the words and said them within the hearing of the wrong judge. Judge Robert Ruehlman has a history of being hard on profanity in his courtroom.

Now, I can understand finding a lawyer in contempt for using profanity in the courtroom. I can even understand levying a fine or something. But six months? When word wasn't used to the court but in a conversation to another lawyer on the way out?

As a rule you should never use profanity in court. However, in this case, six months seems a wee bit on the excessive side.

Who Knew That Berkeley's City Council Would Like To Take Over The Role Of Thought Police

I mean really. Isn't Berkeley supposed to be a place where different view points are allowed to coexist? A place where Voltaire's line about "disagreeing with everything you say but willing to die to defend your right to say it" is supposed to be honored in deed as well as spirit?

Apparently not.

According to the SFGate, the Berkeley City Council passed a measure asking that the Department of Justice prosecute Professor John Yoo of U.C. Berkeley. If you are not aware, Professor Yoo is a law professor at U.C. Berekely's Boalt Hall Law School. Prior to that, he served in the Department of Justice during the early half the current administration. The best piece of work product that you might have heard about is the memo he turned out.

In 2003, he authored the now infamous memo. The memo was generated after being being requested by the Department of Defense to answer the question about what could occur in military interrogations of unlawful combatants held outside the the United States. His memo lead to certain practices being implemented. Specifically, he was considering the requirements of Federal constitutional and statutory law, as well as international treaties, upon military operations and needs when it came to interrogating prisoners.

Now, he was asked a question. He generated a reasoned response, based on research and examination of the relevant Constitutional articles, case law, statutes, and treaties. Were all his conclusions correct? No. Were some? I believe so.

However, the ultra-liberal (how I hate even typing that word because I get the feeling I'm going to get tarred as being a Bush supporter or a neo-con) Berkeley City Council wants him prosecuted. For putting forth his interpretation of the law.

Let's be clear. He did not have the final say in what happened in any prison. All he did, was give his interpretation of the law.

It seems that Berkeley only likes freedom of thought when it comes to progressive/socialist/liberal/alternative ideas. Unfortunately, the loud mouths on the city council should be figuring out better ways to help the citizens of their city. However, it seems they would rather go on quixotic crusades to force people to think the way that they want them to think.

Sorry bout the rant. What it comes down to in my opinion, is that I would rather see people doing, than complaining. If I were a Berkeley resident, I would rather see my city council work on finding ways to help make housing more affordable. Not pontificating on things that have already come to pass and which have changed or already in the process of being changed.

Shame Apparently Works on Some Corporations...

But not on their insurers.

You may remember my post about Taneka Talley and the shameful way in which the insurance company is treating her death. Quick recap:

Ms. Talley was at work stocking the shelves at the Dollar Store where she was employed. A man walked in, stabbed her to death. The insurance company denied the claim against the life insurance policy claiming that it was not work related. They said it was not work related because the man who killed her was just looking for the first African-American he could find so that he could kill them.

Let's see: only reason she died was because she working where she was supposed when she was supposed to. Sounds like it was work related. Doesn't sound like a vengeful ex-lover came after her. Or that she had been knifed by a co-worker because of a person dispute. Nope, sounds liek she died only because she was at work that day.

Well, apparently, protests against the Dollar Store have had some effect. Apparently afraid that the bad publicity will hurt their sales even more, one of the company's vice-presidents, Timothy Reid, announced that "he full workers' compensation benefit permitted under California law[]" will be paid to Ms. Talley's survivor, a son who is still in junior high.

Personally, I think that is not enough. They have made this kid and his guardian (his grandmother) wait for more than two years for this death benefit. The insurer in this case is getting away with making a profit. I hope that Dollar Tree is able to turn around and sue their insurer for bad faith. Letting Specialty Risk Services, a subsidiary of The Hartford, get away with this perversion of the facts is, in my opinion, a travesty.

Sunday, December 07, 2008

This Is How I Roll

Scene: Standing in line at the supermarket near my home approximately 6:20 p.m.

Clerk: Two six packs of Diet Dr. Pepper.... must be a Saturday night.

Me: Yup, that's me, a wild and crazy guy.

Too Funny

Thursday, December 04, 2008

Pondering What the Right Thing To Do Is

I have a case.

Yes, I almost always have a case. However, this one is slightly unusual. And my client is of the opinion that she wants to try and get some media attention since it concerns somethings that may or may not be news worthy.

Now, I personally have a deep aversion to the media since an incident back in college. Any suggestions?

Wednesday, December 03, 2008

How Rock Music Should Be Heard

Yes, they have been a band for longer than I have been alive.

Yes, all their music does sound the same.

No, they have never (unless you count the song "Ride On") ever put out a ballad.

And yes, they still put on an amazing show!

I'm partially deaf. My voice is shot. But it was all worth it to see AC/DC for the first time in more than two decades of trying to get tickets!

And Just When You Thought Insurance Companies Could Not Sink Any Lower

There comes this story. In a nutshell this is what happened. A woman went to work at a store. A man walked in. He decided that he was going to kill someone that day based on their skin color. The woman at the counter happened to be that skin color. He took out a knife and used it to kill said store clerk.

The only reason she was killed: she working that day and fit the profile of someone he wanted to kill.

Now the employer's insurance company has decided to contest the death benefits due her family (in this case, her 11 year old son). There grounds: the death was not work related.

The facts are undisputed: Taneka Talley, was on duty, at the Dollar Store; her murderer walked in and stabbed as she was doing her job, stocking the shelves. She had never had any contact with him before. The only reason she died was because she was working.

The insurance company, Specialty Risk Services, has taken the position that because the man who killed the store clerk just wanted to kill anyone who was African-American, and not in the course of a robbery, that this situation is not covered by the policy. They are saying that there denial is based on it being a "personal" matter.

Apparently Specialty Risk Services has been delaying paying the benefit now for more than 2 years. How they can make this argument with a straight face is beyond me.