The 2014- 2015 Legal Services Directory is out!
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Promoting legal excellence, high ethical standards and professional conduct in the practice of law.
THE STATE BAR OF CALIFORNIA’S
COMMITTEE ON MANDATORY FEE ARBITRATION
INVITES THE VENTURA COUNTY BAR ASSOCIATION AND STATE BAR FEE ARBITRATORS TO ATTEND A:
Shakespeare In Love? Cheri Elson Sperber is taking her talents to Ashland, Oregon August 1. It has been her and her hubby’s dream to do so for many years. She’s not exactly sure whether she’ll practice law or not, but will decide later on after they have settled in and adjusted to the quiet beauty that is Ashland. Her email will remain the ame for a while at firstname.lastname@example.org. Cheri served our board of directors admirably and for a few years was president of the Estate Planning & Probate Section. Happy trails, young lady, to you and Adam! …A San Francisco County Supervisor has identified some outdated laws with the help of a contest for college students. Spurred by the offer of a $1,000 scholarship for the best efforts, they pored through the city code (remember, it’s a combined city and county) on an open data website and pointed out 30 provisions that are candidates for revision or repeal. Supervisor Mark Farrell selected two San Francisco State University students as the winners and asked the city attorney to arrange for the elimination of two laws. One provides for permits to keep cows on private property and the other says service stations must have separate restrooms for men and women… Jerusalem? Erik Feingold at 644.7144 or email@example.com…
The Education Foundation of the Ventura County Mexican American Bar Association invites us all to raise scholarship funds by going to a Dodgers game, August 16 v. the Milwaukee Brewers. There are several options for the price of your tickets, depending on how generous you want to be to their Educational Foundation. For more deets, contact MABA at vcba.maba@gmail. com or Loraine Beilon, section president, at 639.0037 or firstname.lastname@example.org… Activision Blizzard Inc. may have thought imprisoned former Panamanian dictator Manuel Noriega was libel-proof. But that doesn’t mean the California-based company gets to profit from using his persona as “a kidnapper, murderer and enemy of the state” in its popular “Call of Duty: Black Ops ll” video games without his consent, Noriega said in a lawsuit. The legal action also says the game portrays the now-80-year-old “as the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff ’s image and likeness.” Noriega, currently serving a 20-year term in Panama, is represented by Thomas Girardi. Yes, THAT Thomas Girardi…Melodie McLennan Kleiman passed away June 15. The Stanford grad was Chief Assistant County Council for 10-plus years. Noteably, she was the founder of the California Women Lawyers and served as the first president. Services were held July 9…
Westlake lawyer Ricarda Bennett appeared on Keeping Up With The Kardashians during season 9, episode 12. She plays a helipad consultant. The home girl shows up in a plaid blazer and takes Scott Disick entirely in stride, even though she works mostly with “hospital and corporations.” She has blueprints. She has statistics. She uses terms like “transitional slope.” You get the sense that she has absolutely no idea who the Kardashians are, because she answers all the questions sincerely …Recommended Book of the Month: ncertain Justice: The Roberts Court and the Constitution. By Laurence Tribe and Joshua Matz. (Henry Holt, 416 pp., $32). Justice Antonin Scalia is treated better in this book than in the recently published Scalia: A Court of One, by Bruce Allen Murphy. (Simon & Schuster, 656pp., $35)…Walgreens has agreed to pay $180,000 to a longtime South San Francisco cashier with diabetes who was fired in 2008 for grabbing and eating a $1.39 bag of chips to fend off an attack of low blood sugar. The Equal Employment Opportunity Commission announced the settlement of a discrimination suit it filed on behalf of Josefina Hernandez, 57, who had worked for the nation’s largest drug store for almost 18 years. The commission said Hernandez, whose diabetic condition was known to Walgreens, had an attack of hypoglycemia while working in 2008. She started shaking and sweating, and took a bag of chips to stabilize her blood sugar…
Inside this edition of CITATIONS is a nomination form for the Ben E. Nordman Award. This annual award is the bar’s most prestigious and last year’s recipient was Monte Widders. We all know of good works by lawyers all around us, so think of someone you know and submit their name to the selection committee by Sept. 20. The annual dinner this year is set for November 15 at the Crowne Plaza in Ventura. NOTEWORTHY – Barristers’ Annual Wine and Cheese event is scheduled for Aug. 21 at Ferguson Case et al. beginning at 5:30. Contact Past President Rennee Dehesa at 764.6370 or email@example.com. Additionally, the East County Bar Association is hosting a Mixer August 28 at the Napa Tavern in Westlake Village starting at 5:30 p.m. No-host bar, appetizers and door prizes. $15 for members, $20 for non-members. All executed nicely by President Doug Bordner at 644.7188 or firstname.lastname@example.org…
Steve Henderson has been the executive director and chief executive office of the bar association and its affiliated organizations since November 1990 and has been writing this column since Michael Case’s reign of terror in 2000. He may be reached at email@example.com, Twitter at stevehendo1, FB, LinkedIn, or better yet, 650.7599
One of a Kind Office Space – Restored Victorian Home built in 1897. Two offices available. Very elegant. Landlord provides furnished common reception room, pays for utilities and janitorial, with no CAMcharges. 119 Figueroa Street, Old TownVentura, across the street from the Court of Appeal. Walk to Surfers Point or fine restaurants on Main Street. 24/7 access to your office, free 24/7 off-street parking and on-street parking (no meters). Handicapped access. Rent a piece of history. Call Don Parrish (805)340-1204.
Estate planning law firm Cunningham Legal has welcomed Marcia Anderson as an attorney at its Camarillo offices.
Anderson joins CunninghamLegal after four years working as the Senior Deputy Public Administrator and Public Guardian for the County of Ventura. With the County, she worked on conservator legalities regarding patients with dementia, traumatic brain injury and mental illness.
At CunninghamLegal, Anderson will work with clients on all areas of estate planning from probate, trust administration, litigation, special needs planning and more. Anderson received her Juris Doctorate from Southwestern University School of Law in Los Angeles, and graduated Magna cum Laude, with a Bachelor of Arts from California State University, Northridge.
A California native, Anderson was born in Hollywood and grew up in the San Fernando Valley. She settled in Ventura County five years ago to be closer to her family and enjoys line dancing, gardening and genealogy. Anderson volunteers as a Media/ Speaker Coordinator for the Garden of Innocence (GOI). This nonprofit charitable organization provides burial services for abandoned babies and children. Anderson can be reached through CunninghamLegal, whose web site is www.cunninghamlegal.com.
The Senate Finance Committee has approved a revised $10.8 billion Highway Trust Fund bailout bill. This bill did not include any proposals for a social security disability and unemployment insurance offset. This is good news for recipients of SSDI and UI benefits and prevents further erosion of these benefits…for now. Given how bipartisan the bill was, experts expect it to pass the full Senate as well. But attempts to curtail benefits will most certainly come up again.
What does this mean to legal practitioners in the workers’ compensation and social security fields?
Our clients survive on a myriad of benefits that sometime overlap and must be adjusted in the course of settlements and awards by law. For example, in certain cases where an individual receives both permanent disability and state disability following a work injury, there are rules that govern the reimbursement of funds out of the injured worker’s settlement back to the Employment Development Department.
Current law allows workers to collect SSDI and UI at the same time. Some legislators want to take this away and have these funds instead go to the Highway Trust Fund. Currently, individuals qualify for SSDI because they have significant disabilities that prevent work. At the same time, the Social Security Act encourages SSDI beneficiaries to attempt to work, and those who have done so at a low level of earnings but have lost their job through no fault of their own may qualify for Unemployment Insurance (UI) benefits. Most often, these two types of public benefits amount to the only income that keeps a distressed family from drowning economically following a severe work injury to the main wage earner.
The 2012 Government Accountability Office report indicated that less than one percent of individuals served by SSDI and UI receive concurrent benefits, and the average quarterly concurrent benefit in fiscal year 2010 totaled only about $3,300. These extremely modest benefits can be a lifeline to workers with disabilities who receive them. They are legal benefits, and credits and deductions should be carefully scrutinized.
Proposals to cut concurrent benefits continue to arise. They single out SSDI beneficiaries with disabilities, treating them differently from other workers under the UI program, and have the potential to create disincentives to work for SSDI beneficiaries. This is contrary to the public policy in place that encourages all who are able to try to work.
The opposition to the proposals to partially offset the costs of financing the Highway Trust Fund by eliminating or reducing concurrent SSDI and UI benefits grows out of concern for individuals and families. Therefore the revised bill, which avoids this reduction in benefits to those in need is a better one.
Dozens of organizations support this position to prevent these offsets. A full list of these organizations is available in the online version of this article.
Lou Vigorita is a social security and certified workers’ compensation lawyer based in Ventura. His email is firstname.lastname@example.org.
I first met Mike Beckwith in 1978 at the Workers’ Compensation Appeals Board. Having just joined a defense firm in Ventura. I was opposing him on a case where he represented an injured worker. The first thing I noticed was his posture. Later I would find out he was in the military during the Vietnam War. That would explain it, but at the time, he was my opponent and while I don’t remember the underlying case I do remember my first impression: here was a guy of few words and all business.
Years later when we were colleagues on the applicant (plaintiff ) side he would tell me, “the way I deal with the board is to get here first in the morning and stake out my place as first in line!” Everyone else just drifted into the workers’ comp courtrooms in that maddening way familiar to that particular area of the law. Often we in workers’ compensation practice have to remind ourselves that this is indeed the same world in which “civil practice” takes place, just a different part of it.
Mike always seemed to have his own way of doing things. No matter how early I showed up he was always earlier. His own tactics developed following his reflection on how to deal with the over-burdened, frustrating system. He didn’t whine. He just came up with a solution.
Later that same morning in 1978, while I was walking back to my office, our paths crossed again. This time he was on a huge motorcycle, saddlebags and all. Helmeted as he came out of the board’s driveway he paused, reached for something in one of the saddlebags and pulled out what can only be described as a flip board binder with sheets filled with huge block letters. Apparently it was a way to communicate with other drivers. He flipped one, held it up for me to see. It read “HAVE A NICE DAY.” Then he motorcycled off. It looked like Jimmy Stewart’s rendition of “Mr. Smith Goes to Washington” meets Jack Kerouac.
36 years later at his funeral, when I met his brother Jim for the first time, I heard about Mike’s inventiveness growing up in Minneapolis.
“Remember that Jr. Whitney car parts catalog?” he asked, “Well, I remember Mike was always tinkering with cars and once he ordered a 45 RPM record player for under the dash.” (For those of you who don’t know what RPM or RECORD is, just ask a mature adult).
Typically, Mike continued with his love of cars up until his last days. He maintained several interesting and unique vehicles. I’ve seen him in motorhomes, Corvettes, SUVs, you name it. If it had wheels, Mike drove it and maintained it and tweaked it. In addition he was a master wood worker. His neighbors and friends knew him as “Mr. Fix it.”
Same with golf. I was fortunate to play many rounds with Mike at the Inn, the toney Ojai Valley Inn, where Mike would always have a few extra discount coupons, a frugal mid-western attribute, I assumed. Typically he would come up with his own take on the game with things like addressing a difficult shot with a question.
“You know what I use here?” pointing to his unfortunate fairway lie, “this Olimar Rescue Club.”
Without further word he would take out the club, set up, swing and hit a beautiful shot to the green 190 yards away. Of course, I bought one the following day. Today I regret not taking more time to play with him after his cancer surgery.
Mike was raised in Minnesota. Jim told me that he had very frizzy hair growing up and, brothers being brothers, Jim called him “Buckwheat” after the “Our Gang” comedy series character of the same name.
“Not politically correct now,” Jim reminisced, “but that’s what we called him.”
I wish I knew that while Mike was at the Inn checking in for his tee time. I would have loved to call him that and see the expressions on the starter’s face!
After an expensive and frustrating year at a St. Thomas Catholic College – apparently more troublesome for Mike’s father due to the expensive tuition, according to his brother – Mike joined the Navy. This was a huge step, as the Vietnam war was raging. So off he went, little knowing that he was leaving home for good. While stationed on a ship off the coast of Nam he volunteered (even I, as a non-service citizen, know that one should never volunteer, or at least that is what much more experienced vets tell me) for combat duty, which paid more money. Figuring he’s in the Navy, and a radio operator, Mike wrote home that he expected to be stationed on a ship closer, but offshore.
Mike’s brother told me that what did happen would have a significant impact on Mike and is what eventually brought us together at his funeral. He was attached to a Marine battalion and assigned duty on the DMZ, where he was exposed to combat and Agent Orange. Later Mike pursued this with the VA when he was diagnosed with cancer, wanting to know if his treatment was covered, since he was designated as a legitimate Agent Orange victim.
Mike was proud to serve his country and was honorably discharged in 1972. He found a job as a court clerk in Malibu, where a local judge encouraged him to go to law school. He attended Santa Monica City College, University of West Los Angeles, and obtained a law degree from the Mid-Valley College of Law in Van Nuys. He was married and had three sons. Eventually he was hired by the Law Office of Irachmil Taus of Beverly Hills for their Oxnard office, which handled Workers’ Compensation cases for the applicant side. He was to replace Mark Kahn, who was leaving to work for the State Compensation Insurance Fund and who eventually went on to become Southern California Chief Administrative Judge for the Division of Industrial Accidents (now retired). Later Howard Wasserman joined the firm, and for a short period Mike and Howard ran the booming Oxnard practice, until they each went their separate ways in 1984. Mike became a certified workers’ compensation specialist (Board of Legal Specialization) in 1983. He acted as a judge pro tem in workers’ compensation and was president of our local chapter of the California Applicants Attorney Association in 1988.
Four years ago Mike took over the practice of retiring James Coalwell. The Law Office of Michael Beckwith remained at its location on Victoria Avenue until his passing in June. Jim drove down from Northern California to attend the memorial services and recalled, “What a fine man he was.” Jim also reminded me of the “1932 Coup street rod” that Mike built all by himself and took to the Workers’ Compensation Appeals Board many times.
Maria Gil, Mike’s loyal and trusted paralegal, told me, holding ack tears, “I feel like a part of me is gone. I worked with him for 16 years!” she said, “He was a great guy!”
Dierdre Frank Law Office will be handling Mike’s cases from now on. Mike is survived by his wife of 16 years, Patricia (“Trish”), his mother Elna Beckwith and his brother Jim, both of Minneapolis, sons John, Mickey and Joseph of Oxnard, his mother-in-law Jennie Flores, his sisterin- law Laura Flores, niece Holly Jacinto, his trusted paralegal and many colleagues and friends.
At his colleagues’ insistence the California Applicants’ Attorneys Association Central Coast Chapter has set up a memorial fund in Mike’s name for the Wounded Warriors Project. In addition, the family has asked that in lieu of flowers a donation be made in Mike’s name to the Ventura No-Kill Animal Shelter. He left behind his dogs Sparky, Mimi and his therapy dog, Barney.
Lou Vigorita is a social security and certified workers’ compensation lawyer based in Ventura. His email is email@example.com.
Social media blew up over the U.S. Supreme Court’s June 30 decision in Hobby Lobby. The uproar nearly squelched any chatter about the Court’s historic, nearly unanimous opinion just five days earlier in Riley v. California and United States v. Wurie, which were combined into one decision (collectively “Riley”). Both cases in Riley involve whether and how to apply the “search incident to arrest” doctrine to cell phones that police find in the possession of an arrestee. The Supreme Court held that police may not examine the digital contents of an arrestee’s cell phone as part of a search incident to arrest.
The Riley case was a huge Fourth Amendment decision, but more importantly for civil practitioners, the U.S. Supreme Court recognized for the first time the enormous potential for invasion of privacy related to searches of digital data. The Court specifically said that a typical cell phone contains extensive data that allows a viewer to learn information about every feature of the cell phone owner’s life. Chief Justice Roberts, writing for the majority (all justices joined, with Justice Alito concurring in part and concurring in the judgment), noted, “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.” This was the first U.S. Supreme Court ruling on privacy in the digital age, and its impact is expected to extend well beyond personal cell phone usage.
Law constantly struggles to keep pace with technology. As employers attempt to keep up with technology, the boundaries between business interests and employees’ privacy rights often become blurred. For example, while an employer may be tempted to review a job candidate’s social media posts, potential liability looms when snooping social media sites leads to discrimination. What happens when an employer hires someone else after discovering through social media that a potential employee is disabled, a member of a religious or political minority group, or is in a same-sex marriage? It may be difficult to prove that the information was not used in making the hiring decision if evidence shows that the search was conducted. Even if the employer ultimately prevails, it is an expensive exercise in employer rights versus First Amendment freedoms.
The lines become less defined in the workplace. What happens when employees use company-owned cell phones or work from home using company-owned computers? What happens when an employee uses company-owned equipment to post on social media, such as Facebook, Twitter, and Instagram? The Riley decision gives us a glimpse of where the law might be heading in this regard, but it is still largely unchartered
Certainly an employer can access an employee’s social media activity that is available to the general public. An employer may also monitor an employee’s social media activity where the activity takes place using employer-issued equipment or on an employer-owned network. But what does an employer do with information gained through social media? Employee use of social media can raise a whole host of issues, including disclosure of the employer’s confidential, privileged and proprietary information – all of which an employer would legitimately have an interest in.
The federal Stored Communications Act (the “SCA”) protects stored electronic communications that are configured to be private. Courts have found that social media activity, such as non-public Facebook posts, is protected under the SCA. Therefore, an employer potentially violates the SCA where it accesses an employee’s non-public Facebook posts without the employee’s authorization. Some statutes help define the boundaries, but are by no means definitive. California Labor Code section 980, enacted in 2012 prohibits an employer from requesting a job applicant or employee for access to his or her social media, except in limited circumstances. Section (b) of the statute provides that an employer may not “require or request” a job applicant or employee to do any of the following: 1) Disclose a username or password for the purpose of accessing personal social media; 2) Access personal social media in the presence of the employer; or 3) Divulge any personal social media. However, an employer may request that the employee “divulge any personal social media” if it is relevant to a formal investigation. The statute does not preclude an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
Where an employer elects to monitor its employees’ social media activity, the employer must proceed carefully if and when it uses the information learned to discipline or terminate an employee. Terminating or disciplining an employee based on information gained through monitoring the employee’s social media activity potentially violates existing law. For example, the National Labor Relations Act (“NLRA”) protects the right of employees to engage in concerted activities. Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. An employer who is considering terminating or disciplining the employee after learning that an employee is making derogatory posts about the employer on his or her Facebook page that are shared with other co-workers should consider whether the employee’s posts would be considered concerted activity protected by the NLRA.
Any employer who intends to monitor its employees’ social media activity on employer-issued equipment or employer owned networks should disseminate written policies that inform employees that they have no expectation of privacy for any social media activity sent or received on employer-owned networks or using employer-issued equipment, and that all such communications and activity may be monitored. In a litigation context, such policies help demonstrate that employees do not have a reasonable expectation of privacy in any activity they conduct on an employer’s network or using an employer’s equipment. Even with such policies in place, employers do not have free reign. An employer should only use legal means to monitor an employee’s social media activity, regardless of the equipment or network on which this activity takes place. For example, an employer can access an employee’s social media accounts that are generally available to the public. However, an employer should never attempt to gain access to an employee’s private social media account through the use of deceptive means, like using a false identity or by obtaining the employee’s private password from a friend or coworker. “Privacy comes at a cost,” wrote Roberts in Riley. Employers who monitor their employees’ and potential employees’ social media posts may end up paying the price. Time will tell where the line is to be drawn between employers’ interests and employees’ privacy rights. In the meantime, however, employers should be on their toes, ready to adapt to the changing landscape of privacy rights in the digital age.
Jill Friedman is an attorney and litigator at Myers, Widders, Gibson, Jones & Feingold, LLP. To contact Ms. Friedman, call (805)644-7188 or email firstname.lastname@example.org.
“Lady, would you move your God-damned ass so we can fight a God-damned war!!” Those words were yelled at my mother at about 7:30 PM on Feb. 3, 1945 by a tank commander as his tank rumbled into Santo Tomas University, which had been converted into an internee camp to house 3,800 captured Americans in the heart of Manila. The liberation had begun on the treads of two tanks that broke through the walls of Santo Tomas in what General MacArthur called a Flying Column. MacArthur had ordered this column of tanks to go directly to the camp and liberate the men, women and children (including me) from their Japanese captors.
There was urgency because Japanese leaders had issued an order to kill all of the internees if things turned bad. We had been imprisoned for more than three years since the Japanese Imperial Army captured the Philippines in 1942. The internees had heard the rumors about the possibility of annihilation by our camp guards so there was chaos and pandemonium as the tanks and troops stormed into Santo Tomas.
My mother had said that shouted command was delivered by a soldier with a deep Southern accent. And, she said that although she had many beautiful words spoken to her in her lifetime, those were the most beautiful words she ever heard.
Over the years, I researched the history of the liberation of our internment camp. The Army writes a history of its engagements and, doing my research, I learned that the names of the first two tanks into Santo Tomas Internment camp were “The Battling Basic” and the “The Georgia Peach.” That corroborated the story that I often heard from my mother about the trooper with the Southern accent.
Fast forward 69 years plus two-and-a-half months to April 2014. I was attending a commemoration at the General Douglas MacArthur Memorial in Norfolk, Virginia with my oldest son. One of the programs included an elderly 93-year-old gentleman, George Fisher, who spoke to our group. It seems that Mr. Fisher (Corporal Fisher in 1945) was a crewman on that very tank, “The Georgia Peach.” He was part of the Company “B,” 3rd Platoon of the 44th Tank Battalion, part of the First Calvary Division that the general ordered to free the American civilians in Santo Tomas. Mr. Fisher was the “loader” for the tank but he told me the tank commander was Mervyn Herndon, who was indeed from Georgia. He said hardly anyone could understand him due to his deep Southern accent. Tank commander Herndon was the G.I. who yelled those beautiful words of freedom to my mother.
Sometimes it takes a long time to complete a circle, but when it does happen, it is worth the wait. I have thanked trooper George Fisher for what his generation did to save the world. I know that most of my colleagues in the bar are too young to know what it was like in that World War, but some of us have links to that dreadful epoch in the history of the world. It was men like George Fisher and Mervyn Herndon (since deceased, I
have learned) and millions like them who actually saved the world, and, of a more personal note, people they didn’t even know … people like my family and me. I am forever in their debt.
Lindsay Nielson practices real estate and business law in Ventura and is a principal at Nielson|Huff LLP. He can be reached at email@example.com.