School discipline disproportionately affects minority students, according to federal, state and local studies. In a victory for civil rights advocates, new laws went into effect this year addressing educational fairness in California schools.

On Thursday, May 2 at noon, California Rural Legal Assistance, Inc. and the Mexican American Bar Association of Ventura County will provide a CLE presentation on school discipline. $15 fee; BYO brown bag lunch. local attorneys and law students sufficient to prepare attorneys and law students to issuespot and provide basic advice to Ventura County K-12 students and parents in need of help navigating the student discipline process.VAs of January 1, the following new laws address suspension, expulsion and conduct manifestation determinations, and broaden school districts’ obligations:

AB 1729 amends Education Code sections 48900 and 48900.5 to strengthen the alternatives to suspension or expulsion and clarify that school removals should only happen after other means of correction fail to bring about proper conduct.

AB 2537 amends Education Code section 48915 to provide additional discretion to school administrators to use alternative means of correction in lieu of expulsion and further clarifies that possessing an imitation firearm, over-the-counter medicine or student’s prescription medicines are not “zero tolerance” offenses that automatically require expulsion. It also eliminates an existing $500 fine imposed on a principal who fail to notify law enforcement of certain crimes allegedly committed by students.

AB 2616 amends Education Code section 48260 to focus truancy reduction efforts on solutions with schools, students and parents that are shown to work, so that law enforcement and courts are used only as a last resort.

AB 1909 amends Education Code section 48853.5 to ensure that school districts notify social workers or other county child welfare designees and the court appointed attorney for the foster youth when a foster youth is pending expulsion.

SB 1088 amends Education Code section 48645.5 to help ensure that children who have had contact with the juvenile justice system are not barred from re-enrollment and are immediately re-enrolled in school.

For more information, contact Andres Garcia agarcia@crla.org or Franchesca Gonzalez fgonzalez@crla.org Andres Garcia is a staff attorney at California Rural Legal Assistance, Inc. in Oxnard. A second-generation attorney, he obtained his undergraduate degree from UCLA, but went across for law school at USC. Though he earned his law degree at SC, Garcia says “my heart will always remain in Westwood with my undergrad, UCLA.”

The Mexican American Bar Association will host a legal fair with El Concilio on June 1 at the El Concilio offices, 301 South C. Street in Oxnard. We are looking for attorneys and other professionals to donate their time from 10 am to 2 pm (lunch to be provided) to meet with pre-registered individuals from the community who are looking for guidance on legal and financial issues. El Concilio will take care of all of the set up and planning. We just need you to show up and share your knowledge. If you are interested in participating, please contact me at 805-764-6370 or rdehesa@rstlegal.com.

We will not be providing extended legal services or representing individuals in any particular case. Everyone is welcome to offer their services to individuals through subsequent personal meetings, but there is no expectation of any continued representation. We will have disclaimers and waivers available on-site.

This is a great opportunity for MABA to get involved with the local community and assist many individuals who have basic questions and who can benefit from general legal guidance. Thank you for considering this opportunity and please sign up!

Rennee R. Dehesa is an associate at Schneiders & Associates, L.L.P. in Oxnard. She represents business clients and handles bankruptcy matters. She is president of MABA.

Anyone who compared medical bills to the amount actually paid by an insurer has noticed that there is generally a huge discrepancy between the sticker price and the amount accepted by the medical provider.

Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 settled that an injured plaintiff whose medical expenses are paid through private insurance (or Medicare/Medi-Cal) may recover economic damages of no more than the amounts paid by the plaintiff or plaintiff ’s insurer for the medical services actually received or still owing at the time of trial. Explaining that while the collateral source rule precludes certain deductions against otherwise  recoverable damages, the Supreme Court wrote that the rule “does not expand the scope of economic damages to include expenses the plaintiff never incurred.” In other words, plaintiffs may no longer recover the inflated “sticker price” of  medical bills. When a medical care provider is contracted to receive pre-negotiated rates from the injured’s insurer, the plaintiff may recover medical damages in an amount up to, but no more than, the pre-negotiated amount actually due.

Regarding the admissibility of the “sticker price,” the Supreme Court held that “[w] here the provider has, by prior agreement, accepted less than a billed amount as full payment, evidence of the full billed amount is not itself relevant on the issue of past medical expenses.” Where a trial jury has heard evidence of the amount accepted as full payment by the medical provider but has awarded a greater sum as damages for past medical expenses, the defendant may move for a new trial on grounds of excessive damages. A non-statutory “Hanif motion” is unnecessary. If it grants the new trial motion, the trial court may permit the plaintiff to choose between accepting reduced damages or undertaking a new trial.

Post-Howell Court of Appeal Decisions

A pair of recent cases has further attempted to define the reach of Howell. Sanchez v. Brooke (2012) 204 Cal.App.4^th 126 demonstrates that Howell may also be applied outside the context of private health insurance. The Second Appellate District extended the Howell limitation on recoverable medical expenses to workers’ compensation cases. If an injured plaintiff/ employee’s medical expenses are satisfied in full by the reduced amount pursuant to the workers’ compensation laws, the plaintiff/ employee may not recover past medical special damages greater than that amount from the third-party defendant.

Sanchez v. Strickland (2011) 200 Cal. App.4th 758 added some confusion when it held that Howell’s limitation does not apply to “gratuitous write-offs.” The Fifth District held that, where a medical provider has issued a bill for medical services to the plaintiff and has subsequently and gratuitously written off a portion of the bill, the amount written off constitutes a benefit that may be recovered by the plaintiff under the collateral source rule. In that case, the plaintiff incurred charges for medical care for which the provider billed Medicare. The provider received a partial payment from Medicare and a “contract allowance” which, combined, equaled more than 90 percent of the bill. The balance was billed to Medi-Cal, but was eventually written off because the provider did not have a contract with Medi-Cal. The court held the portion “gratuitously” written off could nevertheless be recovered by the plaintiff as damages.

The decision is problematic because the  court did not explain how the write off was “gratuitous” rather then discounted, in particular since there was no contract guaranteeing payment and no evidence of reasonable value of the medical services provided. Arguably every write-off could reflect a “gratuitous write off,” and the exception could swallow the Howell limitations. As a result of Sanchez, an attorney in a personal injury case must carefully analyze whether the amounts are reduced or written off. Expert testimony may be necessary to decipher billing codes, contract allowances, and write offs. allowances, and write offs.

Howell’s Limitations Applicable to Noneconomic Damages or Future Expenses?

Several issues remain hotly contested as Howell expressed no opinion as to the relevance or admissibility of the billed amount versus the paid amount on other issues, such as noneconomic damages or future medical expenses.  These issues are going to be addressed in Corenbaum v. Lampkin, B236227. The Court of Appeal has requested additional briefing on two issues: To what extent, if at all, is evidence of the amount billed for medical expenses admissible and relevant to the issues of (1) future medical expenses and/or (2) noneconomic damages, and to the extent that evidence is admissible for those purposes, what type of limiting instruction, if any, should be given to the jury. A decision is expected in early summer.

Medical Liens – A Trap for the Unwary

Attorneys must pay attention to medical liens to avoid subjecting themselves to an obligation to reimburse the lien and/or penalties.

An attorney representing a Medi-Cal beneficiary has a statutory duty to notify the Director of Health Services (“DHCS”) within 30 days of filing of a claim. No settlement or award in any action may be satisfied without giving the director notice thereof and a reasonable opportunity to perfect and satisfy the lien. Welfare and Institutions Code section 14124.79 requires insurance carriers liable for a Medi-Cal beneficiary’s claim to notify  DHCS because they are legally obligated to reimburse Medi-Cal.

Medicare liens are enforceable under federal statutes. (See 42 U.S.C.A §§ 2651- 2653.) The Federal Center for Medicare & Medicaid Services (“CMS”) is entitled to  reimbursement for the medical expenses of Medicare beneficiaries injured in accidents which third parties or private insurers are legally obligated to pay. Applicable regulations give CMS the right to seek reimbursement from a Medicare beneficiary or the beneficiary’s attorney to the extent he or she received settlement payments from defendants or their insurers. (See 42 CFR §411.24(h)-(i).)

Medicare’s reimbursement right extends to defendants and their attorneys. Defendants and their liability insurers are under a statutory duty to notify CMS of the litigation. (See 42 USC § 1395y(b) (7)(B).) A release given by the plaintiff to the defendant does not bar the United States from recovering for medical services to the plaintiff. (See United States v. Winter (E.D.Pa.1967) 275 F.Supp. 895.) If a defendant or the defendant’s liability insurer pays a Medicare beneficiary’s tort claim without satisfying a Medicare lien, the defendant may end up paying twice. (42 CFR §411.24(i).) All parties in the case – plaintiff, defendant, defendant’s insurer and attorneys on both sides – can be held liable for $1,000 per-day penalties for failure to comply with Medicare notification requirements, and for double damages if the government sues to enforce its reimbursement rights. (42 USC §1395y(b)(7)(B); 42 CFR §411.24 (c),(g).)

To avoid potential personal liability, attorneys representing a Medicare beneficiary in a personal injury action should contact CMS and propose conditional payment calculations before disbursing any settlement or award to plaintiff or other lien holders. It is proper to complete settlement agreements with a “set-aside” provision providing that the plaintiff will set aside in a blocked account certain sums of monies to cover the amount of benefits provided. (See Schexnayder v. Scottsdale Ins. Co.(W.D.La. 2011) 2011 WL 3273547, at *8.)

Under California’s Hospital Lien Act, Civil Code section 3045.1, et seq., a hospital that provides medical services to a person injured by an accident or wrongful act may place a lien on the damages recovered from the defendant. The rules are very specific as to how this lien is to be perfected by the hospital. Such a lien is limited to 50 percent of the potential recovery that the injured person may recover from the defendant. Once properly provided with notice, if the defendant then makes payment to the injured person without satisfying the lien, the defendant is liable to the hospital for the expenses of medical care and services rendered to the injured person.

Gabriele M. Lashly is a certified appellate specialist. She handles law and motions, writs and appeals at Slaughter & Reagan, LLP in Ventura.

The Real Property Section of the Ventura County Bar Association has scheduled three great programs.

On May 22, Christian Spring, vice president and general counsel for Foreclosure Resources, Inc., will speak on handling foreclosures following Senate Bill 900 dubbed the “Homeowners Bill of Rights,” by California Attorney General Kamala Harris. Spring will also discuss current foreclosure trends, that expose clients to foreclosure-related losses.

On June 26, Gov Hutchinson, senior counsel and member of the legal services division of the California Association of Realtors, will give his always-popular legal update and discussion of recent revisions to select CAR forms.

On August 28, Ventura County Planning Director Kim Prillhart and Ventura County Building and Safety Building Official Jim MacDonald will present “Planning, Zoning & Building in Ventura County,” covering everything you want (and need) to know about planning, zoning and California Building Code standards.

Please note that the Real Property Section now meets at the Tower Club. Look for flyers for each of these programs in CITATIONS. If you have questions about these programs or the Section, or suggestions for future meeting topics, please contact me at rguizar@nchc.com or (805)988-8365. We look forward to seeing you at our next meeting.

Ramon Guizar is of counsel to the Real Estate and Land Use Law Section of Oxnard based Nordman Cormany Hair & Compton.

The Ventura County Law Library has provided legal materials to the bench and bar since 1891. In the late 1990s, the library’s mission encompassed the public’s need for equal access to legal information. Despite decreased budget revenues, the library still provides for the legal research needs of Ventura County. While every California county may have a county law library, not all do. Ventura is fortunate to have this resource.

A six-member board of trustees oversees the VCLL. The County Board of Supervisors appoints two members as representatives of the Board of Supervisors and the Ventura County Bar Association. The Ventura County Superior Court fills the remaining slots with one judge and three local attorneys.

VCLL is a local public agency governed by Business and Professions Code sections 6300 et. seq. Ninety-eight percent of its operating  revenue comes from a portion of the civil filing fee. The library receives $32 from fees on the first documents filed by the plaintiff and defendant on civil cases, excluding juvenile matters. Small claims filings over $5,000 generate two dollars a case. The County provides the law library quarters on the first floor of the Hall of Justice building at 800 South Victoria Avenue.

Before 2007, the VCLL could ask the County Board of Supervisors for an annual increase of up to three dollars of the VCLL’s portion of the civil filing fee. Every five or six years the VCLL would exercise this option to keep up with inflation. In 2007, however, the Administrative Office of the Courts pushed through legislation for a uniform filing fee, eliminating the Board of Supervisors’ authorization to increase library fees. The legislation placed a moratorium on raising fees until 2010. County law libraries were assured that the AOC would work with them for a fee increase when the moratorium ended. Nevertheless, since 2010 the AOC has raised the civil filing fee twice without including additional fees for law libraries. A new moratorium prevents raising the civil filing fee until 2014. At that time the county law libraries will be forced to return to the Legislature for relief.

What fees are allowed have been diminished by economic woes. Increases in the jurisdictional limit for small claims cases from $5,000 to $7,000, and most recently to $10,000 in 2013, have reduced the VCLL’s resources because cases normally filed as limited civil cases became eligible for small claims court instead. Where law libraries once received $64 from a limited civil filing fee, they now receive two dollars for the small claims filing over $5,000. The County’s recent economic downturn contributed to a decrease in the number of paid civil filings, and many people feeling the effects of the economic downturn qualify for fee waivers, further reducing revenues.

Meanwhile, continual increases in subscription fees by legal information vendors have forced the library to cancel upkeep on many of its titles. However, the library is still dedicated to keeping a current practice collection with an emphasis on California law and certain federal practice areas. The library also maintains a self-help collection, mainly Nolo Publishing titles, for the pro per litigant.

Always vigilant for new opportunities to maintain services, the VCLL secured an independent grant specifically to provide educational forums on legal topics for the public. Speakers have thus far scheduled talks on the second and fourth Wednesdays, at 5:30 p.m., for April and May. Local attorneys interested in speaking are encouraged to contact the VCLL at (805)642-8982. Future plans also include hosting MCLE classes for attorneys.

The future funding of the VCLL depends on legislators facing significant budgetary constraints because of other state needs. The VCLL certainly will accept donations to help cover the gaps in funding. For more information please visit the library website at www.vencolawlib.org. This is also the portal for access to on-line materials offered through library partners.

Among all the legal resources at the VCLL, there are some surprisingly fun titles included in the stacks:

· The Twilight of the Supreme Court  A History of Our Constitutional Theory by Edward S. Corwin, Yale University Press,1934.

· Inquisition by Edward Peters, Free Press, 1988

· Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk by Todd. C. Peppers,Stanford University Press, 2006.

· The Case That Will Not Die: Commonwealth vs. Sacco and Vanzetti by Herbert Ehrmann, Little Brown & Company, 1969.

For an interesting history of the California Codes, try 42 Cal L Rev. 766 for a 1954 article “The Revision and Codification of California Statutes 1849-1953” by Ralph N. Kleps. The VCLL also has older biographies, periodicals and legal quotations books. Among other unexpected finds was Outdoor California by the California Department of Fish and Game. This magazine arrives by way of the library’s California Depository program for government documents. It has some great pictures of California wildlife, and may cover laws and programs dealing with the wildlife and lands of California.

Alfred Vargas handles appellate, landlord-tenant and other litigation matters. He is a member of the CITATIONS editorial board.

On March 28, the Estate Planning and Probate Section of our bar welcomed Judge Glen M. Reiser, Ventura County’s presiding probate judge. Judge Reiser presented his annual State of the Probate Court address to a standing-room-only crowd. As usual, Judge Reiser’s presentation was informative and humorous. Some highlights:

Attorney Fees

An item that is always at the top of every attorney’s list: attorney fees. Given that most attorney fees in probate matters (including guardianships and conservatorships) are subject to court approval, this is very valuable information. Judge Reiser shared with us that he has increased his “maximum” allowable hourly fee from $325 to $340. The fee for any particular attorney is determined by considering his or her personal experience and expertise.

Local Rules

Among the next round of proposed changes for our local rules are procedures that encourage counsel and pro pers to make video appearances, authorization to use either local or state forms for filing a care plan and various bond issues, including the absolute requirement that out of state representatives post bonds and changes to the local rules which emphasize that the Probate Code guidelines will be strictly enforced.

Changes to filing fees

Judge Reiser reminded the audience of the following fee changes: (1) An increase to $435 for the filing fee for most probate petitions (plus a one-time fee of $30 for court reporter services); (2) A $50 fee for lodging a will; and a $500 filing fee for any motion for summary judgment.

Technology Report

The audience also learned that Ventura County is falling behind a bit in the technology department. By the end of next year, most counties will have e-filing available. Some of the very few exceptions will be Ventura County, Los Angeles County and Imperial County. Judge Reiser is extremely active in this area and hopes Ventura will catch back up (and begin offering e-filing) soon.

Counsel for Proposed Conservatee

Judge Reiser shared with us his belief that the court should appoint counsel for a conservatee early in the conservatorship process (a belief he has shared with us on many prior occasions). He believes this is appropriate even when private counsel claims to represent the conservatee. His reasoning behind this position involves  the rights that can be affected before a conservatorship is even in place. He believes it is a better protection of due process to appoint counsel (or, in some cases, co-counsel) early in the case and relieve them if it is determined that the proposed conservatee has the capacity to retain their own counsel.

Special Needs Trusts

The audience engaged Judge Reiser in a discussion involving Special Needs Trusts (SNTs) that are created in civil matters without the Probate Court’s involvement. Unfortunately, these SNTs can later become administrative nightmares. Judge Reiser indicted he would consider a local rule which required the   proposed SNTs be presented to the Probate Court for approval before a civil matter could be settled.

Giraldin

Judge Reiser also briefly discussed the recent California Supreme Court decision in Giraldin. He urged practitioners to review the case carefully and be mindful of how it may apply to their clients. Judge Reiser will be joining two other presenters for a panel discussion of the Giraldin case at our June meeting.

Judge Reiser’s State of the Probate Court presentation is always packed full of helpful hints and timely advice. We appreciate the time he takes to make this annual presentation and we are looking forward to having him update us again next year. We hope you will join us.

Amber Rodriguez is the current chair of the Executive Committee for the Estate Planning and Probate Section of the Ventura County Bar. Her practice focuses on probate and trust litigation and administration, conservatorships & estate planning. You can reach Amber at  arodriguez@estateattorneycalifornia.com.