Legal Pad

'Harris' Already Being Invoked by Employment Counsel

[Scott Graham]

It didn't take long for the California Supreme Court's big employment discrimination decision, Harris v. City of Santa Monica, to prompt a request for a new trial.

Thursday afternoon -- less than seven hours after the high court issued Harris -- attorneys for Lucasfilm Ltd. incorporated the decision into a brief seeking relief from a $1.27 million pregnancy discrimination judgment.

In Veronese v. Lucasfilm, the First District Court of Appeal has already reversed the judgment obtained by Julie Gilman Veronese, ruling that the trial judge failed to instruct the jury on the business judgment rule, among other things. Veronese, represented by Altshuler Berzon and the Law Offices of Mayor Joseph L. Alioto and Angela Alioto, petitioned for review to the Supreme Court last month.

Lucasfilm filed its answer on Thursday. Among several reasons for denying review, it noted the jury was instructed with CACI 2500, which let it rule for Veronese if discrimination was a motivating factor in the employment action. "On Feb. 7, 2013, in Harris v. City of Santa Monica, No. S1081004, this court held that CACI 2500 is wrong," wrote attorneys Steven Drapkin of the Law Offices of Steven Drapkin and Paul Cane of Paul Hastings in their answer filed Feb. 7.

Because Harris requires that discrimination be a substantial motivating factor, Lucasfilm is entitled to a new trial, even if the Supreme Court were to agree with Veronese about the business judgment instruction, they contend. 

It's not clear how much relief Harris might ultimately convey to Lucasfilm, if a new trial were ordered on that ground. Of the $1.27 million awarded to Veronese, $1.15 million was for attorneys fees. And even post-Harris, Veronese could make a claim for fees.

First District May Have Vacancy Soon

[Scott Graham]

We’re hearing that James Marchiano, presiding justice of the First District Court of Appeal’s Division One, is nearing retirement. Marchiano was feted by his colleagues earlier this month and is said to no longer to be taking new cases, although it’s unclear whether he’s set a formal retirement date.

Marchiano did not respond to a voice mail or email Wednesday, and his Division One colleague, Justice Sandra Margulies, referred an inquiry to him.

A fixture in the Contra Costa County bench and bar, the affable Marchiano would mark 25 years of judicial service this summer. He served 10 years on Contra Costa County Superior Court before his appointment to the court of appeal by Gov. Pete Wilson in 1998 and subsequent elevation to the PJ role in 2002 by Gov. Gray Davis.

A Democrat who was twice appointed by Republican governors, Marchiano generally produced straightforward opinions free of ideological or rhetorical embroidery. He wrote the opinion last year upholding the involuntary manslaughter conviction and two-year sentence of BART officer Johannes Mehserle for the shooting of Oscar Grant. He ruled in 2011 that a cat owner could recover reasonable medical expenses for wrongful injury of the pet, even if they exceeded the pet's market value. And in 2009 he struck down a controversial state law that provided for incarceration of certain low-level substances abusers, on the grounds it was inconsistent with the 2000 drug diversion initiative Proposition 36.

“Even if these provisions of Senate Bill 1137 could be deemed to further Proposition 36's public health purpose, they would still be unconstitutional because they are inconsistent with the proposition's other primary purposes of saving jail cells for violent offenders and saving money with use of treatment instead of incarceration,” Marchiano wrote in Gardner v. Schwarznegger.

As a superior court judge, Marchiano was seen as the driving force behind a program that used direct calendaring, mediation and short trials with pro tem judges to reduce the court's civil backlog.

Marchiano was a litigator with Crosby, Heafey, Roach & May and Bledsoe, Smith, Cathcart, Boyd & Eliot before joining the bench.

In a 2001 profile of the judge, Kathleen Banke -- then a Crosby, Heafey appellate partner and today a Division One colleague of Marchiano's -- credited him with "the consummate judicial temperament."

As Marchiano put it, "You don't ever want to put down the lawyers." 

Judges Ready to Wine and Dine Lawmakers

[Cheryl Miller]

Want to hobnob with the chief justice? If you’re a state lawmaker and you’re in Sacramento on Wednesday, you’re in luck.

The State Bar, the Consumer Attorneys of California, the California Defense Counsel and the Open Courts Coalition are scheduled to host a meet-and-greet reception with the judicial branch leader for legislators. No official word on where the schmoozefest will take place, but we’re told that a “soulful Italian” eatery near the Capitol is the place to be.

Chief Justice Tani Cantil-Sakauye has made no secret of the fact that she wanted a chance to gather casually with lawmakers. She told the California Judges Association convention in October that she had “kind of whispered in the ears of a few attorney organizations that, ‘Gee, wouldn't it be nice if we paid for a reception and invited the Judicial Council and all the judges’” to meet the many new lawmakers who have joined the Assembly and state Senate this year.

“We want to make ourselves known,” she said, suggesting that a good “swag bag” would be a definite draw for attendees.

Sadly, the press has been barred from the social event.

“There’s no agenda and no speeches,” Bar spokeswoman Laura Ernde said in an email. “It’s just an opportunity for the chief and new lawmakers to mingle and get to know each other.”

No word on what kind of swag will be in the bags.

Charlie Spared Ruff (heh) Justice

[Vanessa Blum]

Things are looking up for Charlie.

The 22-month pitbull was scheduled for “destruction” by the City of San Francisco after attacking a police horse last year at Crissy Field. The dog’s fate hung in the balance Friday as a temporary restraining order barring the city from killing Charlie was about to expire.

City attorneys wanted U.S. District Judge Charles Breyer to clear the way for Charlie’s death sentence, calling it more humane than continuing to keep the canine confined.

But after seven hours of tense negotiations that lasted into Thursday night, the city agreed to a deal that spares Charlie’s life on the condition his owner, San Francisco resident David Gizzarelli, pays for the animal’s boarding at a suitable sanctuary.

Gizzarelli’s lawyer reported the settlement to Breyer at Friday’s hearing. The matter had been set for arguments on a motion for a preliminary injunction

“Charlie is not going to be killed,” Gizzarelli’s lawyer John Mounier Jr. pronounced after the hearing. Both sides promised more details once the papers were signed and the settlement was official.

Charlie got into trouble in August when he was playing off-leash in a designated area of Crissy Field. He spotted a horse carrying a park police officer and took off in a sprint.

According to court records, Charlie bit the horse, causing the animal to rear up and throw the officer to the ground, knocking the man unconscious.

Charlie then chased the horse for nearly two miles and continued to attack causing bleeding gashes to the horse’s legs, thighs and stomach.

At a subsequent hearing, Charlie was designated a vicious dog and ordered to be humanely put down.
Gizzarelli, who adopted Charlie as a puppy in March 2011, sued city officials in state court claiming his constitutional rights were violated when the city seized Charlie and issued a kill order without providing adequate notice or due process.

After the state claim was denied and with an appeal pending, Gizzarelli filed a federal complaint and sought a court order blocking the city from carrying out Charlie’s execution. 

The San Francisco City Attorney’s Office argued the government possessed authority to regulate dangerous dogs and asked Breyer not to interfere with the planned execution.

The case drew massive attention as a result of media coverage and an online “Save Charlie” campaign, which gained nearly 10,000 followers on Facebook.

Breyer said the matter generated as much public interest as any case of his judicial career and that emotional letters pleading for Charlie’s life poured into chambers from around the world.

“I’m really pleased there has been a resolution,” Breyer said, praising the work of U.S. Magistrate Judge Nathanael Cousins who led settlement talks.

“The credit goes to Judge Cousins,” he said. “But for his, no pun intended, doggedness, it would not have been resolved.”

Longtime Veterans' Rights Advocate Passes the Baton

[Cynthia Foster]

After decades of veterans’ rights pro bono work and an important win in an ongoing veterans’ class action against the United States government, Gordon Erspamer is off the case.

Erspamer retired from Morrison & Foerster on Jan. 1, he confirmed Wednesday, and said litigator James Bennett will be taking over as lead attorney for a class of more than 100,000 Vietnam War veterans who claim the government failed to warn them of the toxicity of biological weapons used in secret studies by the Central Intelligence Agency and others. U.S. District Judge Claudia Wilken of Oakland certified the class last October.

A separate case previously handled by Erspamer was shut down by the U.S. Supreme Court on Monday, when the justices declined to review a Ninth Circuit decision junking veterans’ allegations that the government mishandled benefits claims.

Erspamer stepped down from the partnership at MoFo five years ago, taking on a senior counsel role at the firm on a contract basis, but stayed active in the litigation on behalf of veterans. The work has been the cornerstone of his career, and he said that he’d have liked to continue on with the latest case but “that was not to be.” Erspamer said his contract with the firm expired on Dec. 31 and renewing it “would’ve required working something out with” MoFo.

Litigation co-chair Arturo Gonzalez, who worked with Erspamer on selecting Bennett to take over, said that when Erspamer signed the senior counsel contract five years ago the firm “understood that, for personal reasons, Gordy would no longer” work at the firm once it expired.

Erspamer said he has been dealing with some longstanding health issues and that he would take 2013 off, possibly to work on a novel about biological weapons testing on veterans. Gordon’s father, a Navy sailor, died of complications from radiation exposure in 1980.

Gonzalez said MoFo will continue to represent veterans groups on a pro bono basis.

“The firm’s commitment to the rights of veterans has never been stronger,” he said, “and we’re grateful that Gordy devoted a substantial amount of his time to helping those less fortunate, including our country’s veterans.”

After 11 Years, Seligman Puts Down His 'Dukes'

[Cynthia Foster]

With Brad Seligman headed for the bench, his giant case against Wal-Mart is changing hands.

Governor Jerry Brown announced he'd tapped Seligman for the Alameda Superior Court on Thursday. The Impact Fund founder is perhaps best known for Dukes v. Wal-Mart, the huge gender discrimination class action he filed in 2001. The suit, originally filed on behalf of more than 1 million female Wal-Mart employees, alleges the retail giant underpays and underpromotes female employees. Although the U.S. Supreme Court shut the national class action down, Seligman has been pursuing claims on behalf of a smaller class in the U.S. District Court for the Northern District of California.

Reached Friday, Seligman said he was in the process of informing defense counsel in Dukes that he’ll be off the case pending his swearing-in to the bench, and that Pasadena employment firm Hadsell, Stormer, Richardson & Renick will be taking over as co-lead counsel. Seligman’s firm, The Impact Fund, will still be counsel on the case, but will take a smaller role.

Seligman said he chose Hadsell Stormer because he knows the lawyers well and trusts them.

“They are one of the premier public interest firms in California,” he said. They have a “depth of experience litigating class action civil rights cases.”

According to the firm’s website, the 10-lawyer group has achieved several significant settlements in gender discrimination cases.

Hadsell Stormer partner Randall Renick will be the California co-lead counsel in the case, Seligman said, sharing duties with Washington, D.C. lawyer Joseph Sellers of Cohen Milstein.

Seligman is scheduled to be sworn in Monday morning.

“I’ve had five days to wrap up my practice,” he said, but he’s ready for his next career move. “I always wanted to leave [private practice] while I felt good, and I feel good,” he said.

 

Two Trials, Two Reversals for Prosecutorial Misconduct

[Scott Graham]

Getting a judgment actually reversed for prosecutorial misconduct is rare. How about twice in the same case?

On Thursday, the Sixth District Court of Appeal took the Santa Clara County district attorney's office to the woodshed for a second time in the case of Dariel Shazier, an alleged sexually violent predator. In 2006, the appellate court threw out Shazier's commitment order as an SVP based on former prosecutor Benjamin Field's having deliberately violated an in limine motion barring the discussion of punishment.

The DA's office retried the case, again obtained a commitment order, and is now once again in flagrante reverso. This time Chief Assistant DA Jay Boyarsky, who tried the case when he was a line DA, is taking the blame. Sixth District PJ Conrad Rushing's opinion says he committed "flagrant misconduct" by warning jurors to think about how friends and acquaintances would react to an acquittal.

"Public opinion is not a proper consideration for a jury," Rushing wrote in People v. Shazier. "This reasoning has been condemned as faulty since the time of ancient Greece."

Boyarsky also implyied Shazier had committed other crimes and told jurors Shazier was "grooming" them the same way he did his child victims.

Boyarsky and District Attorney Jeff Rosen graciously told the San Jose Mercury News that they respect the court's decision. "Any prosecutor in my office may err," Rosen says in the Mercury News' detailed article, "and when we do, we learn from it and improve."

Judge Alfonso Fernandez's also took some heat, though not as much as Boyarsky, for his handling of the case. "We observe that not one of [defense] counsel's well-taken objections was sustained by the court," Rushing wrote. "The court erred in overruling these objections."

 

Trial Court Funding Study? Don't Expect Much

[Cheryl Miller]

The Trial Court Funding Workgroup met for the second time on Tuesday, and it quickly became apparent that observers who are looking to the 10 panelists for sweeping recommendations to change California’s court financing system are probably watching the wrong show.

At its inaugural meeting on Nov. 6, the group talked about choosing two or three courts of similar size to compare their budgets, caseloads and staffing levels. At Tuesday’s meeting the proposal never surfaced for discussion. Last month state Finance Director Ana Matosantos said she would suggest a more specific scope for the group’s vaguely defined work assignment. As of Tuesday, the Finance Department, no doubt consumed now with drafting the state budget, had not provided any more specificity.

Asked about the group’s endgame, co-chair Phillip Isenberg on Tuesday said only, “Have you read the charge sheet?”

That “charge,” as defined by the governor’s revised May budget, is to evaluate the state’s compliance with the 1997 Trial Court Funding Act, which, among other things, shifted court funding responsibility from the counties to the state. The group, the budget said, “will conduct a statewide analysis of workload metrics, staffing standards, and other relevant data necessary to support a more uniform and efficient administrative system for the judiciary.”

On Tuesday, that translated into giving Jody Patel, chief of staff of the Administrative Office of the Courts, a huge work assignment, including summarizing areas where there has been uniformity among court services and looking for ways to measure the funding act’s promise of equal access to justice in the trial courts.

How that will translate into any final recommendations is unclear. What is clear is that there seems to be little appetite among group members to dictate a standardized workload for an individual court or judge. And that may disappoint some historically underfunded courts.

“Disparate impacts upon access to justice from county to county will continue until workload is considered when making funding decisions,” leaders from Lake County Superior Court wrote in a Dec. 7 letter to the working group. The court’s presiding judge, assistant presiding judge and executive officer said they have had to reduce staffing by 35 percent, furlough workers and slash public hours while “some trial courts have been able to maintain services to the public and provide wage and benefit increases to staff.”

“Without funding based at least in large part on workload, there cannot be equal justice for all Californians,” the Lake County court leaders wrote.

The working group meets again on Jan. 15. Members are expected to produce a report on their findings by April.

 

Appellate Ruling So Wrong, It Must Be Accident, Counsel Says

[Scott Graham]

Redwood City attorney Paul Carroll has a good issue that might get him in front of the California Supreme Court. But the way he’s presenting it probably won’t win him any friends at the Third District Court of Appeal.

Carroll’s Nov. 6 petition in People v. Wooten, S206473, points out that the Third District’s opinion in the case sets up a direct conflict with a 2001 opinion from the First District. So far, so good.

But, Carroll continues, the court’s discussion of the case is “with respect, wildly inaccurate. Indeed, it is so confused that we believe there has been some sort of inadvertent error.”

That may not sit well with Third District Justice Andrea Hoch, the author of Wooten -- especially given that Carroll did not petition for rehearing at the Third District before going to the state’s high court.

Carroll said Wednesday that he had not discovered the error until after the time to petition for rehearing, and “I should have.” But he had no regrets about his critique, saying the law clerk or judge who drafted the opinion “made an incredible error.”

Medical Event Causes Abrupt End to Capital Case Argument

[Scott Graham]

A frightening moment at the U.S. Court of Appeals for the Ninth Circuit this morning as Deputy Attorney General Bruce Ortega appeared to experience symptoms of a cardiac event during a capital case argument. Ortega was administered oxygen and taken by gurney to an ambulance. He appeared conscious and alert while departing, and a spokeswoman for the AG's office said he's expected to be OK.

Ortega, 50, was nearing the end of rebuttal in a 32-year-old capital case, Walker v. Martel, calmly listing the aggravating circumstances outlined by the California Supreme Court, when he appeared to grow short of breath and asked for a short break. After a drink of water, Ortega told the court he wasn't well and asked to submit the case. "I hate to do this," he apologized.

Two of Ortega's opponents, Douglas Young and Nanci Clarence, hurried across the courtroom to help, with Young helping Ortega lie down. Judges Barry Silverman and Susan Graber summoned medical help, removing their robes and coming down from the bench. At one point Judge Graber had to re-engage the courtroom audio system to tell Judge Ronald Gould, who was appearing by satellite linkup, that the post-argument conference would be delayed until help arrived.

Paramedics, who had been told that Ortega was experiencing chest pain and a rapid pulse, arrived in about 10 minutes and the deputy AG was whisked to an ambulance.

Ortega had been urging the Ninth Circuit to reinstate a death judgment against Marvin Pete Walker, who was convicted in 1980 of murder during the robbery of a San Jose liquor store, plus the separate robbery, beating and sexual assault of a woman in San Jose. U.S. District Judge Saundra Brown Armstrong threw out the convictions and the death sentence in 2011 because Walker had been shackled during trial, and his attorney had failed to object.

Ortega argued that the knee brace Walker wore underneath his clothes was unobtrusive, and that in any event both the guilt and penalty evidence were overwhelming, so the failure to object was not prejudicial. The judges had sounded as if they might agree with Ortega about the guilt phase evidence, but probably not about the penalty phase.