Attorney Journal, Orange County, Volume 128

ORANGE COUNTY

Volume 128, 2016 • $6.95

Um, Why did You Send this Article to Me?

Mike O’Horo

McIntyre’s Civil Alert Organized Succinct Summaries

Monty A. McIntyre Approaching Litigation Settlement, the Ahimsa Way

Joshua L. Kirsch

Web Security for Law Firms

Miguel Vega

Avvo’s First Amendment Rights Trump Legal Challenges

Guy Loranger

Attorney of the Month

Eric Dubin

Dubin Law Firm, Irvine A Superhero Come to Life for Injured Victims

4 Sources of Inspiration for Brand Storytelling

Corrie Benfield

KA

Keller/Anderle LLP BUSINESS TRIAL LAWYERS

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ORANGE COUNTY CORPORATE REAL ESTATE ADVISORS

At Hughes Marino we only represent tenants and buyers – never landlords – so we never have a conflict of interest. Our only fiduciary duty is to our client, the tenant, and we are wholly committed to protecting their interests. If you are not happy with your service or results, then we will give you our commission. Guaranteed.

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2016 EDITION—NO.128

TABLE OF CONTENTS 6 Approaching Litigation Settlement, the Ahimsa Way

by Joshua L. Kirsch

8 Um, Why did You Send this Article to Me?

by Mike O’ Horo

12 COMMUNITYnews

EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners

ATTORNEY OF THE MONTH

16 Eric Dubin Dubin Law Firm Irvine A Superhero Come to Life for Injured Victims

by Karen Gorden

16

CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths

22 Avvo’s First Amendment Rights Trump Legal Challenges

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Monty McIntyre Mike O’Horo Joshua L. Kirsch Guy Loranger Miguel Vega Corrie Benfield

by Guy Loranger

24

WEBMASTER Mariusz Opalka

OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

by Corrie Benfield

26 Web Security for Law Firms

ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us

24 4 Sources of Inspiration for Brand Storytelling

26

by Miguel Vega

30 McIntyre’s Civil Alert Organized Succinct Summaries

by Monty A. McIntyre

Editorial material appears in Attorney Journal as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journal.

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Approaching Litigation Settlement, the Ahimsa Way

by Joshua L. Kirsch

P

arties to litigation often experience it as an exceptionally stressful and even exasperating experience. Litigation has the potential to tax not just the parties’ time, but their financial and emotional resources. Even nominal business disputes have a human component, because business is fundamentally conducted between people.

There’s an almost irony in how individuals, exceptionally gifted in business, shed their sensible judgment and insight, cornerstones of what led to their success in the first instance, at the threshold of litigation. There are any number of reasons for this shift away from rational business judgment. Unrealistic expectations are often to blame. Portrayals of attorneys and disputes in consumer-media are part of the problem. So often complex civil and even criminal matters arise, unfold, and are resolved on television in the span of an hour or less. The neatly packaged and gratifying outcomes portrayed, though often unknown to the lay observer, embrace suppositions which frequently defy the rules of evidence and employ modalities that defy the ethical precepts which govern the adjudication of matters. In short, most cases do not and cannot be handled in the manner depicted on television.

Attorneys often receive new matters through word-ofmouth referrals. A client can bestow no higher compliment on an attorney than to return with their own business or recommend their counsel to a loved one, friend, or trusted business associate. But even well-founded referrals to well-

6 Attorney Journal Orange County | Volume 128, 2016

regarded attorneys can carry unrealistic expectations and with it, a shift away from rational business judgment. Litigation is by its very nature, peculiarly fact intensive. A subtle shift in the facts from one matter to the next may dictate an entirely different outcome. And so, while an attorney may have been able to work what seems like a feat of magic in one case— for example, quickly disposing of a claim with little or no discovery and a small fee—nothing guarantees that outcome in successive actions. Even on what seems like an identical set of facts, a different outcome may result with a more skilled, better-represented opponent or a change in judge, who interprets the application of the law to the facts differently than the first. Much like financial counsellors often advise, past success does not guarantee a future outcome. An attorney can do everything right, and still, a matter may drag on, with costs continuing to accumulate.

And then, the “reptile” brain can be partly to blame.

Parties to litigation often experience what they perceive as a very palpable threat to their well-being, triggering primal feelings of both anger and fear. Anger at being drawn into litigation often inspires parties to yearn to witness the quick and complete decimation of their adversary, in a public and even humiliating way. They want to be vindicated, to know that in the circles within which they travel, and maybe even beyond, their opponent is a bad actor, unsavory, and not to be trusted. That anger is often coupled with a good bit

of fear. Fear of financial loss—both in the consumption of resources through litigation and the potential loss of resources through an adverse judgment—and fear of esteem or prestige.

Indeed, parties to litigation often feel as though they are on stage before the community in which they operate. They feel their standing, their reputation in that community, is at stake.

Sometimes, they are quite right; other times, matters are tempests in a tea-pot, but a party may still experience them as a major storm.

Despite all the angst that litigation can entail, the shocking reality is that most cases, even as many as 90 percent or more, will settle. Cases settle for a wide variety of reasons. One, is the mitigation of risk—trading an unknown outcome for a stipulated one. Another is simple business realities. A party may not have the resources to fight a contested matter or a party may settle a matter to avoid drawing valuable business contacts, such as vendors or customers, into the dispute. Yet another reason that cases may settle is this: Litigation most often finds its genesis in a breakdown of communication between the litigants. Sometimes, through the efforts of counsel, or a mediator, or the court, the parties’ dialogue can be restored to a normalcy that allows for expression of a sensible, realistic dialogue and the exercise of rational business judgment. Sadly, however, many cases persist for months or years, consuming time and resources, before parties are willing to embrace a settlement dialogue from that perspective.

Good attorneys, based on their knowledge and experience, can help frame the expectations of their clients in terms of understanding the litigation process, the ark of time and costs consumed as the case proceeds, and what the outer bounds and more likely outcomes of the process will be if proceeding to conclusion. But attorneys are more than just advocates; they are counselors at law. In this role attorneys regularly find themselves as sounding boards, and also, the soft voice urging reason and a return to rational business judgment. Yet, attorneys can only act within the scope of authority conferred on them by their clients in the settlement process, and so, ultimately, the client must make the decision to embrace the settlement posture that will best serve them.

In circles which embrace yoga as a practice, beyond the physical, one is likely to hear talk of the Eight Limbs or Eight Petals of yoga. They are generally set forth in Patanjali’s Yoga Sutras, an ancient text, which across nearly two-hundred small verses, sets forth a path for liberation of the mind and achievement of a state of bliss. However, the concepts set forth across the Yoga Sutras need not be embraced entirely or in any spiritual sense for them to have utility in everyday affairs including litigation and the resolution of disputes. One of the Eight Petals includes what is known as the Yamas. Yamas are themselves a code of personal conduct, and among them is Ahimsa or non-violence. Ahimsa is often thought of as non-

violence towards others, but it can also be conceptualized as non-violence towards one’s self. Ahimsa is a concept which often finds application in litigation, but sadly, only after the parties have battered themselves both emotionally and financially through extensive litigation.

Ahimsa tends to manifest just before parties reach a settlement. Sometimes it’s one-sided. Sometimes it’s mutual.

Ahimsa shows itself when a party steps back from the fray of litigation and determines that the costs and potential costs of time and financial and emotional resources are causing it more harm than extending or accepting an ovation at accord.

So often, and tragically, parties only arrive at this place after they’ve “had enough.” They have grown frustrated or even exhausted with directing facilities ordinarily dedicated to business growth, to gathering documents in response to discovery demands, to court appearances, or to paying attorneys’ fees and related expenses—even for work that is well done and necessary for the advancement of the party’s position.

Knowing that the super-majority of all cases settle, parties should consider embracing the concept of Ahimsa early in the litigation process and even before the institution of formal proceedings, where communication is likely easiest and most likely to ward off future costs. By exploring how the party can best serve itself, that is, not harm itself—by acting as a rational business actor and not from a place of anger or fear— considerable personal and financial resources can be saved.

Embracing and then communicating a sensible settlement offer which serves a party’s interests under the circumstances and early in the process, is not a sign of weakness; capable counsel can help articulate an ovation at settlement to set the right tone. While it ultimately takes two to reach an accord, a party that litigates and looks for resolution within the construct of Ahimsa will more readily perceive opportunities at accord. Furthermore, settlement offers which are expressed with Ahimsa in mind are more likely to convey the sensibility of the party extending the offer. Not surprisingly, rational settlement offers lead to rational counter-offers, sparking productive dialogues, often culminating in settlement.

While business disputes are inevitable, the suffering that often goes with them is not. Embracing Ahimsa early and throughout the process can help parties achieve the efficient and sometimes even speedy resolution of matters. n Joshua L. Kirsch is an attorney and member at Eckert Seamans Cherin & Mellott in Philadelphia. He is a seasoned litigator and regularly handles commercial litigation matters, intellectual property disputes, and the defense of professionals in the legal and medical communities. Joshua holds a Yoga Alliance RYT-200 certification and teaches in the Philadelphia area.

Attorney Journal Orange County | Volume 128, 2016 7

Um, Why did You Send this Article to Me?

by Mike O’Horo For 20 years, Mike O’Horo has been known by lawyers everywhere as The Coach. He trained more than 7,000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@rainmakervt.com.

M

any lawyers have learned a basic lesson from PR 101.

These attorneys have begun emailing their clients and contacts copies of news stories about themselves or that feature their remarks on significant issues.

That’s laudable. But many could handle this kind of opportunity better.

For example, recently, a lawyer whom I coach sent me a story that mentioned him. I admired the degree of his involvement in a critical social issue and his desire to communicate with his market.

As I read the article, however, I kept thinking about other recipients of the lawyer’s emailed story. I wondered whether they had the same question I had: “Why did he send this to me? It’s very interesting, but what does it have to do with me, specifically? Or did he send it to everybody he knows?”

Before composing any marketing communication, eliminate the “Why did he send me this” question by establishing a clear goal for that specific message, and that specific recipient. Ask yourself what specific response you’re trying to elicit from that reader, such as “Oh, I didn’t know that,” “Gee, that must mean [conclusion about himself ],” or “This is a more serious issue than I thought it was,” or “Hey, here’s some fresh thinking about this issue. I may have more options than I thought.” You get the idea.

This simple discipline will make it much easier and faster to write virtually anything. It will also eliminate the recipient’s head-scratcher, “Why did he send this to me?” Or worse, the perception that the item is self-aggrandizing.

When you say or imply that something is useful, have a specific reason for asserting your claim. Say, for example, “Your annual support of XYZ organization suggested to me that you have more than a casual interest in [issue], so I thought you would find this of interest.” n

8 8 Attorney Journal Orange County | Volume 128, 2016

by Brian Tracy

REFERRAL & CO-COUNSEL RELATIONSHIPS

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“I recently co-counseled a serious Las Vegas injury case with Rick Harris and his law firm. Rick’s advocacy and skills are extraordinary, and were instrumental in resolving and maximizing our client’s sizable recovery.” ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyers San Francisco, California

© 2016 RHLF

COMMUNITY news n On Saturday, November 19, 2016, Orange County Trial Lawyers Association (OCTLA) will honor William D. Shapiro, founder of the Law Offices of William D. Shapiro, as one of the association’s 2016 Top Gun Trial Lawyers of the Year.

Shapiro is being recognized for his work in Government Liability. The event will be held at the Island Hotel in Newport Beach.

WILLIAM D. SHAPIRO

n Snell & Wilmer is pleased to announce the expansion of its Orange County office with the addition of Mark Foster as counsel in the firm’s real estate group, and Darren V. Roman as counsel in the firm’s commercial finance group. Foster joins Snell & Wilmer from Sabal Financial Group, L.P., where he served as General Counsel since 2012.

Roman was most recently Of Counsel with MARK FOSTER Buchalter Nemer.

Foster has more than 18 years of legal experience in real estate and commercial finance, including over 13 years as an in-house attorney representing national and international real estate and finance companies. Most recently, Foster served as Vice President and General Counsel of Sabal Financial Group, a diversified real estate asset management and financial services DARREN V. ROMAN platform. Prior to Sabal, Foster served as Senior Counsel for Rockefeller Group Development Corporation, where he focused on all aspects of commercial real estate acquisition, development and operations.

Roman focuses his practice on representing lenders in all types of personal property and real property secured financing transactions, asset-based loans, regulatory issues, swap transactions, and loans to Indian Tribes. In addition to his years of law firm experience working with leaders in the finance industry, Roman earned his B.S. degree in finance from Arizona State University and served for eight years as in-house counsel for a large international bank.

Have a Press Release you would like to submit for our Community News?

Email it to PR@AttorneyJournal.us

12 Attorney Journal Orange County | Volume 128, 2016

n The Orange County Women Lawyers Association (OCWLA) has honored Orange County litigation partner and Executive Committee member Michele D. Johnson of Latham & Watkins LLP as its “Attorney of the Year” for both her market-leading practice and her leadership roles in the community. MICHELE D. JOHNSON Johnson is well-regarded for her high-stakes litigation practice and was recently recognized nationally by Law360 as one of the “25 Most Influential Women in Securities Law.” She was also named by Profiles in Diversity Journal to its 14th annual “Women Worth Watching” list that acknowledges females in law firm leadership roles.

Johnson has a longstanding commitment to giving back to the community, and has served on the boards of the Public Law Center and the Orange County chapter of the Association of Business Trial Lawyers. She recently received the Anti-Defamation League of Orange County’s Jurisprudence Award in recognition of her strong commitment to civil rights and to ending bigotry of all kinds. n K. Elizabeth Dunn and Kevin DeSantis, formerly of Butz Dunn & DeSantis, APC, along with Christopher Walt of Walt & Associates and John Kendrick, Jr., formerly of Irvine-based Kendrick, Jackson & Kearl, PLC, have formed the new firm of Dunn DeSantis Walt & Kendrick, LLP. K. ELIZABETH DUNN They are joined by partners James McFaul and David Cardone, both of whom were shareholders of the former Butz Dunn & DeSantis firm. With offices in San Diego, La Jolla and Irvine, the firm provides advisement, transaction and litigation services to its clients in California and across the U.S. “In responding to the needs of KEVIN DESANTIS our clients, we have developed a multi-faceted business model that allows us to effectively serve as our clients’ outsourced general counsel,” explained Kevin DeSantis, the firm’s managing partner. “We will continue to become strategic partners with our clients and work collaboratively towards their success.”

Attorneys Gregory Walt, Tracy Forbath, Allison Carcelli, Constantine Buzunis, and Jill Kirby expand Dunn DeSantis Walt & Kendrick’s capacity to bring comprehensive representation to its clients.

COMMUNITY news n The Orange County Trial Lawyers Association (OCTLA) has named H. Gavin Long Top Gun Trial Lawyer of the Year for personal injury law.

According to the organization’s website, Long is one of five Orange County lawyers to receive this distinction and the only attorney to be honored in the “personal injury” category. The five H. GAVIN LONG top trial lawyers will be recognized and celebrated during a special evening Nov. 19 at the Island Hotel in Newport Beach.

Long has had a tremendous track record of success during his time at Bisnar Chase since April 2012. Most recently, he secured $3 million in a pedestrian accident where the client was offered just the policy limit—$100,000. Long took the case to a jury trial despite the fact that the police faulted the pedestrian.

Long graduated from the University of Southern California in 1996 and from Whittier Law School in 1999. He was a recipient of the American Jurisprudence Award for securing the highest grades in his study of Torts and Evidence. Long was appointed to the Consumer Attorneys of California’s (CAOC) Board of Governors and sits on the Board of Directors for the Orange County Trial Lawyers Association. He was also admitted as a member into the American Board of Trial Advocates (ABOTA), an honor bestowed only on the top 1 percent of the nation's attorneys.

n Berger Kahn Shareholder Teresa Ponder and Partner Erin Mindoro are featured in the Super Lawyers Southern California ERIN MINDORO TERESA PONDER “Top Women” Lists for 2016, honoring excellence in their practice of law and among the highest-ranked women in the region. A peer-reviewed journal, Super Lawyers evaluates attorneys based upon their practice of law, service to the community, and input from their peers. Berger Kahn congratulates Teresa and Erin for this esteemed recognition.

n Brian W. Easton, Trial Attorney at Easton & Easton, has received the Martindale-Hubbell® AV Preeminent rating, the highest level of MartindaleHubbell’s® Peer Review Rating™ system.

Martindale-Hubbell Peer Review Ratings are an objective indicator of an attorney’s high ethical standards and professional abilities.

BRIAN W. EASTON Easton is a member of the American Board of Trial Advocates (ABOTA) and has also been selected to the Multi-Million Dollar Advocates Forum®—The Top Trial Lawyers in America, and has been chosen each year since 2014 as a National Trial Lawyers Top 100 Trial Lawyer. Brian has also received the designation of Super Lawyer by Thomson Reuters.

Attorney Journal Orange County | Volume 128, 2016 13

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Real Life Superman When it Comes to Fighting for Victims of Justice, Eric Dubin is Fearless, Focused and Full of Heart

E

by Karen Gorden

ric Dubin is no stranger to the spotlight. As the man who finally proved that celebrity Robert Blake was indeed responsible for the death of his wife Bonny Lee Bakley, Dubin permanently solidified his legacy as one of the nation’s most relentless, and skillful, trial attorneys more than a decade ago.

After winning the 2005 headline-grabbing $30 million jury verdict on behalf of the family of the victim, after the state failed to prove Blake was guilty of murder, Dubin went on to publish both the books The Star Chamber and Reasonable Doubt, which he co-authored with Larry King. With so much accomplished, it wouldn’t have been unreasonable to expect Dubin to consider his work as a contributor to justice more than complete.

Yet anyone who knows Dubin, or worse, has had to go up against him in court, knows that the fame that followed such a public victory would still never quench his insatiable appetite for seeing justice served. On the contrary, delivering justice to injured victims only drives Dubin to avenge more wrongs committed against innocent victims, through no fault of their own.

“Winning big against Robert Blake opened up doors to bigger trials and cases and gave me an experience akin to climbing Mt. Everest alone, and with no oxygen. There were 70 witnesses, each who had a massive file, along with an equally difficult liability and damages argument. It was the biggest investigation in LAPD history; the files came to me from three District Attorneys in an 18-wheeler U-Haul,” he recalls.

16 Attorney Journal Orange County | Volume 128, 2016

All the same, Dubin is emphatic when saying that he would absolutely do it again, as the personal rewards he reaps from providing justice are immeasurable. “Lifting that weight from my clients, and getting justice in a death or horrific injury trial for deserving people is a feeling that I absolutely live for,” Dubin says with palpable sincerity.

One only needs to look to the accomplishments Dubin has earned in just the last two years since he was first featured in Attorney Journal, to see that he doesn’t just talk the talk; he walks the walk. Time and again Dubin puts his money where his mouth is, knowing that where there is a will, he will find a way to help provide comfort to his clients. To that end, suffice it to say Dubin continues to take on cases with seemingly impossible odds, all in his dogged pursuit of justice for those who have had their lives irrevocably altered as the result of another’s wrongdoing or negligence.

Perhaps no case more clearly illustrates just how determined Dubin is to help victims than the mind-blowing 2015 $10.2 Million victory he obtained for the Barr Family in Orange County, and the implications that victory may have for victims of medical malpractice, and for the attorneys who represent them.

“This monumental verdict is on appeal, but it has already been included in the 2016 California Jury Instructions Handbook, and would be a billion-dollar swing in the medical malpractice world if the appeals go favorably,” Dubin says. “It does not get much better than that.”

ATTORNEY

OF THE MONTH

© christopher TODD studios

2016 2014

Attorney Journal Orange County | Volume 124, 2016 17

Fearless in the Face of Impossible Odds The potentially game-changing verdict arose out of Barr, et al v.

Lonika’s Home, Inc., et al, and began when Dubin was contacted by the parents of 15-year-old Kevin Barr, who died on February 7, 2012 at Mission Viejo assisted care facility Lonika Homes, Inc. At first blush, Dubin found himself facing a trifecta of seemingly insurmountable hurdles. “Elder abuse law applies only to victims aged 16 and older,” says Dubin. Furthermore, with punitive damages prohibited in Wrongful Death, and the California cap at $250,000 per MICRA 4250, the likelihood that Dubin would be able to achieve real justice for the devastated parents of the boy was at best a long shot.

Still, the case struck Dubin. The victim, who suffered from cerebral palsy with seizure disorder, did not receive his antiseizure medication on the afternoon of February 6, 2012. By the time the caregiver responsible for him checked on the victim, he was unresponsive, yet she failed to call 911 for approximately one hour. She also failed to attempt CPR. In fact, the caregiver was found to be bathing other children when the paramedics finally arrived.

“The caregiver had no CPR certification, nor any emergency response training,” Dubin says. All the same, Dubin was up against the brick wall limits of the decades old, and wildly unpopular MICRA limits. “I called everyone I could think of, to discuss ways of getting around the MICRA limits. I had started coming up with some pretty novel ideas, but everyone I talked to eventually said the same thing: MICRA, MICRA, MICRA.” Dubin refused to be deterred. Instead he began devising a strategy which had never before been used. He honed in on the facility’s concealment of their post-death conduct. With this new idea forming, Dubin says he started picking the brains of friends and colleagues and received incredible—if cautiously optimistic—support from attorneys including Daniel Hodes, Kim Valentine, and Bryan Garcia.

Thus, in the face of exceedingly tough obstacles, Dubin suited up, accepted the obviously risky case, and admittedly spent a small fortune on the case, which included nine medical expert witnesses, who are frankly some of the best in the defense world.

He didn’t bat an eye. “There was clear wrongdoing, and a family lost their child. I was going to fight for them and I was going to win for them,” he recalls.

Fully Focused on the Fight Dubin is unapologetic when he states, “I’m a firm believer that the trial attorney has to be the one taking all of the depositions, and has to do the bulk of the work up. Winning is the result of preparation. You cannot know and win a case like this if you don’t do the footwork on your own.” As such, though he obviously

18 Attorney Journal Orange County | Volume 128, 2016

brings in attorneys to assist him on a case-by-case basis, it is his unparalleled personal focus that takes the fear out of taking on extraordinarily challenging cases. “I love the fact that there are people I can call, and people I trust to help make sure that I get justice for my clients. But there is a huge advantage when you can pull up details on your own in terms of deposition page/ lines,” he says of his “work-like-a-dog” pre-trial mentality. “It’s simply not optional, that’s my job.”

Staying personally focused on the fight ahead is frankly the reason that Dubin is essentially fearless in trial, even when he’s facing off against a tenured medical malpractice attorney, such as his opposing counsel in the Barr case. After all, by the time it reached trial Dubin says he had taken roughly 30 depositions in 40 days, spent hundreds and hundreds of hours fighting demurrers, arguing pre-trial motions, and committing to memory even the most minute of details. By the time he faced the jury, he had found solutions to the problems that at one time seemed insurmountable.

“I learned a long time ago from Gerry Spence to be honest, to be open, and to avoid appearing as if my case was flawless.

I took that to heart. I certainly love watching great lawyers, and I’ve learned a lot about voice inflection, and creating vivid details through my storytelling, but I have never tried to mimic anyone’s style. I am myself, and I expose the flaws in my case early on,” he says. “In the Barr case, the treating doctor had said she was not surprised my client died, and had signed off on natural causes. In my opening, I said ‘Yes! The treating physician did say she wasn’t surprised that my client’s son died.

Yes! She said it and the defense is going to tell you she said it over and over again, so I’m telling you, she said it!” Dubin adds with a wry laugh. “I knew I could handle it with the evidence, but could not let a talented defense lawyer plant that seed first.”

When the trial was finally complete, all of Dubin’s hard work paid off. After only roughly 5 hours of deliberation, the jury delivered an award of $5.7 Million in actual damages. Less than a month later, an additional $4.5 Million in punitive damages was awarded to Dubin’s clients. He had successfully argued the post-death argument to win both punitive damages for concealment, and also for wrongful death, normally precluded.

The verdict was immediately snatched up for inclusion in the 2016 California Jury Instructions Handbook, and indisputably lays the groundwork for fellow attorneys to try their own hand at working around MICRA limits.

“You have to kill yourself on these cases to do your client right, but once you taste the power that true justice can bring people, the long and hard hours become enjoyable,” Dubin says.

“The fact that this case can be used to help other attorneys fight and win justice for their clients also feels pretty incredible,” he adds candidly. “This has the potential to change everything in medical malpractice cases, and I’m very proud of that.”

© christopher TODD studios

Contact Eric Dubin Dubin Law Firm 19200 Von Karman Ave., Sixth Floor Irvine, CA 92612 P: (949) 477-8040 edubin@dubinlaw.com www.dubinlaw.com 20 Attorney Journal Orange County | Volume 128, 2016 20

© christopher TODD studios

The deep-seated compassion Dubin feels for clients such as the Barrs, is unquestionably the driving force propelling Dubin to fight as fiercely and relentlessly as he does and as he will continue to do in the future. “All of the great trial lawyers are on the side of justice, and I’m no different,” he says. “People like Dan Callahan, Bob Simon, Greg Rizio are all out there getting amazing verdicts in the face of tragedy.”

Continuing he says, “For me, being able to look my clients in the eye, even in trial and say ‘I’m so sorry that this happened to you,’ is at the heart of what I do. You can’t help but put yourself in the shoes of the people you’re fighting for. When I’m fighting for someone who lost their mother, I think of my mom. When I’m fighting for people who have lost their child, I think of my own children.”

Admitting his work is emotionally exhausting at times, Dubin also knows that it is precisely this emotional component which reinforces his resolve to continue fighting. “I have literally seen the pain and the stress leave my client’s body when a jury verdict is read.

Justice can bring closure and peace when everything works the way it should,” he says simply.

That said, it’s no surprise that Dubin is working full steam ahead along with elite attorneys including Paul Kiesel and Greene, Broillet & Wheeler on the forthcoming 2017 massive lawsuit resulting from the devastating big rig crash in Orland in which 10 people (5 of them children) were killed and 40 were severely injured when a FedEx truck crossed the median and slammed into a bus full of children. As co-lead trial counsel, Dubin is ready for the fight. “What happened to these victims and their families is absolutely horrifying,” he says.

In the meantime, Dubin admits that although he would love to get back to teaching one day, and plans to write more books, that can all wait. “I love teaching and I love writing, and hope I will have time to enjoy all of that again in the future. I’m also excited to join Bob Simon, Arash Homampour and Bob Thompson at CAOC in San Francisco this month for a panel called “Real Talk About Trial Experiences.” I’m looking forward to sharing my experiences with my colleagues, and learn so much from them.”

As for the immediate future, Dubin, who was recently presented with the 2016 Hero Of Hope Award by longtime friend Tom Mesereau, for his work with the N-Action Family Network, says he plans to continue to follow his heart. “There are so many things I still want to do, and I’ll do them all. For now, I’m busy being a trial lawyer, and beyond proud to be fighting for people who deserve justice.” n

EXPERIENCE

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» AWARDS & ACCOMPLISHMENTS • Top 20 Lawyer in California, Los Angeles Daily Journal • Top 100 Trial Lawyer in America, National Trial Lawyers • The Best Lawyer in Orange County, OC Weekly Magazine • OC Metro Magazine Top Lawyers • Super Lawyer, Los Angeles Magazine • Super Lawyer Rising Star, Los Angeles Magazine • Top 10 Verdict California, Los Angeles Daily Journal • Top 100 VERDICT IN AMERICA Verdicts and Settlements • Top 10 Verdict in California, Los Angeles Daily Journal • Multi-Million Dollar Advocate, Multi-Million Dollar Advocates Forum Life Member • Hero of Hope Award 2016 • Lawyer of the Year Los Angeles 2016 • National Association of Distinguished Counsel (Top 1%) • Top 25 Jury Verdict • Top 10 Jury Verdict State of California 2005 • AVVO 10 Perfect Rating • Top 10 Client Satisfaction in America, Institute of Personal Injury Attorneys

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Attorney Journal Orange County | Volume 128, 2016  21

Avvo’s First Amendment Rights Trump Legal Challenges

by Guy Loranger

T

wo putative class-action lawsuits that took aim at the way Avvo uses sponsored listings to earn revenue have fizzled out, with one case ending in a settlement and the other in a dismissal.

We first reported on the lawsuits in the June issue of Attorney Journal. We were interested in the cases—one being litigated in Illinois, and the other in California—due to the fact that many of our clients use Avvo’s online attorney directory as part of their marketing campaigns.

KEY ISSUE: UNLAWFUL USE OF LAWYERS' IDENTITIES OR PROTECTED SPEECH? The central issue that emerged in both cases was whether Avvo unlawfully generated revenue by using the identities of lawyers who do not buy sponsored listings on the directory—without the lawyers’ consent—or whether Avvo was simply exercising its right to free speech.

On September 12, a federal court judge in Illinois found that it was the latter and dismissed a lawsuit that was filed against the Seattle-based company in February 2016. As The Cook County Record reports, the judge compared Avvo’s attorney listings to the Yellow Pages.

That ruling came six weeks after the named plaintiff in a similar lawsuit in California voluntarily dismissed his complaint and agreed to a settlement with Avvo that would allow him to 22 Attorney Journal Orange County | Volume 128, 2016

pay only a portion of the company’s attorney fees, according to Courthouse News (CN).

CN reports that the plaintiff reached the settlement after it became “very, very clear” that a federal court judge would strike his complaint under California’s anti-SLAPP law, which imposes attorney fees on plaintiffs who seek to suppress protected speech.

“This is further validation that publishers like Avvo needn’t obtain the consent of their subjects prior to exercising their First Amendment rights,” Avvo’s chief legal officer, Josh King, said in a September 13 press release issued by the company after the ruling in the Illinois case.

“The purpose of a free and unfettered media is to provide transparency and openness,” King added. “While we never felt like the principle was really at risk here, we’re pleased at the explicit recognition that our efforts to help people better understand lawyers and the legal profession are fully protected by the First Amendment.”

LAWSUITS BROUGHT RIGHT OF PUBLICITY, MISAPPROPRIATION CLAIMS As we noted in May, Avvo has successfully fended off many other legal challenges in the past, including: • An unfair and deceptive trade practices claim brought by a pair of Seattle lawyers after the online legal directory launched in 2007 (reported in the Seattle Times).

• A lawsuit alleging false advertising and misrepresentation that a Florida lawyer filed in 2010 (reported in Geekwire).

In the two recent lawsuits, the plaintiffs did not challenge the way Avvo lists lawyers from across the country.

The listings are based on information from public records such as state bar directories. The public can view the listings for free. A lawyer can also “claim” his or her listing and manage it for no charge.

Instead, the plaintiffs attacked the way Avvo generates revenue by selling advertising and marketing space on the lawyer profile pages through programs such as:

strike Darsky’s complaint under California’s anti-SLAPP law. The law allows sanctions to be imposed on those who bring lawsuits against parties who are merely exercising their constitutional right to free speech.

If successful, an anti-SLAPP motion can result in a lawsuit being dismissed, and the plaintiff can be ordered to pay a defendant’s attorney fees.

Here, according to CN, it became clear that U.S. District Judge Haywood S. Gilliam would rule in Avvo’s favor. CN indicates that Darsky agreed to drop his claim in exchange for paying only a portion—but not all—of Avvo’s legal fees.

• Avvo Advertising, in which lawyers pay a monthly fee to have their ads displayed as "sponsored listings" that can appear on the profile pages of other lawyers.

• Avvo Pro, in which lawyers can pay a monthly fee to keep other attorneys' sponsored listings off their profile pages.

Both lawsuits alleged that Avvo violated their states’ right of publicity laws: California—Cal. Civ. Code § 3344 and Illinois—765 ILCS 1075. Those laws bar the use of a person’s identity and likeness for commercial purposes without getting prior consent from the person.

The lawsuits also alleged common law misappropriation claims.

The plaintiffs sought damages and a ruling that would have barred Avvo from using the identities of the named plaintiffs and other class members.

ILLINOIS LAWSUIT ENDS IN DISMISSAL

WITH ANTI-SLAPP DECISION LOOMING, CALIFORNIA CASE SETTLES Aaron H. Darsky, a San Francisco lawyer, filed the California lawsuit in December 2015 in the U.S. District Court for the Northern District of California. (Docket No. 3:15-cv05495-HSG).

In his complaint, Darsky acknowledged that Avvo’s attorney listings “may be a permissible First Amendment exercise.”

However, he claimed, “Avvo’s business practices go far beyond that mere exercise” by using the names and likenesses of attorneys in the directory, without their consent, to sell advertising or marketing space to other attorneys.

In that sense, Darsky alleged, the online directory amounts to unprotected commercial speech.

The lawsuit noted that, according to Bloomberg News, Avvo had a valuation of $650 million and raised $132 million in funding.

“The revenues generated by Avvo come almost exclusively from its unauthorized use” of the names and likenesses of attorneys who, like Darsky, do not use Avvo’s advertising and marketing services, the complaint stated.

As CN reports, Avvo responded by filing a motion to

The lawsuit in Illinois had been initially brought in state court by a Chicago attorney, Moria Bernstein. The ABA Journal posted the complaint. It ended up in the U.S. District Court for the Northern District of Illinois, The Cook County Record reports. (Docket No. 1:16-cv-02833).

In May, John Vrdolyak assumed status as the named plaintiff. The switch came after Avvo asserted that Bernstein had “claimed” her Avvo profile, triggering a forum selection clause in the Avvo user agreement that would have forced the case to be moved to a Seattle federal court, the Record reports.

The case stayed in Chicago, where it was dismissed by U.S. District Judge Robert W. Gettleman on September 12.

In the decision, Gettleman found that, while Avvo’s sponsored listings were commercial in nature, those listings did not convert the entire online directory into commercial speech.

Instead, the directory is more like the Yellow Pages—a publication in which ads can be placed—and as such, it is a form of protected speech, Gettleman held.

“The court agrees with [Avvo] that to hold otherwise would lead to the unintended result that any entity that publishes truthful newsworthy information about individuals such as teachers, directors and other professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated revenue from advertisements placed by others in the same field,” Gettleman stated, according to the Record.

The Record did not indicate whether the plaintiff planned to appeal the decision, or whether Avvo would seek a recovery of attorney fees. n Guy Loranger is the Web Content Editor for Consultwebs. com. His role allows him to interact regularly with clients on developing website pages, press releases, blogs and other Web content that promotes their firm's practice areas and enhances their search engine rankings. He is also Google Analytics IQ certified. www.consultwebs.com.

Attorney Journal Orange County | Volume 128, 2016 23

4 Sources of Inspiration for Brand Storytelling

by Corrie Benfield

A

ll law firms have stories to tell. Stories of triumph. Stories of tragedy. Stories that often fuel movie plots and leave people wanting more. So how do you draw those stories out to help build your brand? You’ll need to start with a source, an inspiration for the story you want to tell. And that shouldn’t be hard. Lawyers are fortunate to work with a treasure trove of interesting people and tackle a ton of fascinating topics in their careers. Here are four sources of inspiration that you could tap into:

1. Your Clients Helping people is the reason you do what you do, and winning for clients can make a huge difference in their lives.

Your clients can tell stories that people can relate to, especially those who may find themselves in the same boat.

While you were focused on the nitty-gritty facts of their case, your clients were likely on an emotional roller coaster.

They can share that emotional side of what they have been through, and how your firm helped them get through the dark times and find hope. Your clients’ stories can breathe life into your impressive (but sometimes impersonal) list of case results.

2. Your Attorneys and Staff You are so much more than a headshot or a commercial tagline, and you need to show that. Consider telling your own stories: What motivated you to go into law? What pushed you

24 Attorney Journal Orange County | Volume 128, 2016

to start your own firm? What cases have kept you up at night and why? Is there one case that has changed the way you look at the world? Is there a client whom you have kept in touch with for many years because you formed a special bond? What are your interests outside of work that keep you fulfilled?

These types of stories help make your personality stand out from all the buzzwords and advertising hype. They show who you are as a person and help potential clients connect with you.

And never underestimate the wealth of stories among your staff. These are your brand ambassadors – answering the phones, greeting people who walk in the door, digging for information for panicked clients. Which staff members have been with you the longest, and why do they love working for your firm? Do your staff members participate in hobbies or volunteer work that has helped them connect to clients? You never know who may have a story to tell until you ask.

3. Your Professional Partners There are plenty of people you work with every day who have extremely interesting jobs and loads of stories related to cases they have worked on with you. For example, the average person has probably never heard of an accident reconstructionist, let alone what that job entails. And think of all the emotional cases your life-care planning experts have worked on with you.

Consider tapping into those partners who help you help

clients. What drives them to do what they do? What makes their jobs interesting? What do they add to your brand, and how do all their puzzle pieces come together to make a strong case for your clients?

4. Big Data or Patterns of Information Beyond the personal stories, keep an eye on the news and information coming out of the agencies you deal with frequently. For example, the police may release a list of the city’s most dangerous intersections. That report may refer to crash data from the state, which could be used to tell a much bigger story about dangerous local roads.

Keep in mind that not all stories are told through videos and long narratives. Many data-driven stories can be told through graphics and maps, such as this one that our team created for the Tate Law Offices in Texas (http://www.tatelawoffices. com/texas-triangle-tragedies). Often, data can tell a story that provides useful information, impacts people’s everyday lives, and emphasizes your brand’s mission of serving the public.

Structure Your Stories in a Way that Keeps People Interested

How Will You Tell Your Brand’s Story?

When considering the best ways to boost your brand through storytelling, take all of your communication channels into account. Share your stories on your firm’s website, through social media, on your blog, and in press releases.

Capture emotions through videos that people will relate to and want to share. Collect letters, notes, and photos from clients. And write your own stories in your own voice, so your personality can shine through.

In the end, the stories you tell should reflect a consistent image of your brand. They should be impactful, insightful, and—most of all—leave people with the desire to learn more about your law firm.

Corrie Benfield brings a deep background in journalism and legal writing to her role as a Web Content Editor with Consultwebs, where she edits and writes a wide array or content that is search engine-optimized and informative to those in need of legal help. Learn more at www.consultwebs.com.

When thinking about how to structure your brand’s stories, keep some of your favorite movies in mind. What do they have in common structurally that you should incorporate?

Most likely, they are built on: • A good guy

•

An interesting opening

• A bad guy (or bad situation)

•

A struggle to overcome

•

A surprising twist

• Supporting cast

•

A satisfying conclusion

Not every story you tell will include all of these elements, but it helps to outline your structure with these factors in mind.

In addition, take into account: The average person’s attention span is 8 seconds (shorter than a goldfish’s), according to a 2015 study from Microsoft.

This means you have very little time to hook your audience and keep them interested in your story. If you are telling your story through video or text, focus on a great opening and interesting character development from the start. If you are sharing stories through a graphic or multimedia asset, make sure it is visually interesting and easy to navigate at a glance.

The conclusion to your story shouldn’t be the end. Your stories should leave your audience wanting more—and give them ways to find it. Direct them to your website, invite them to contact you, point them to more stories. Remember, one of the goals of brand storytelling is to build a personal connection with your audience, so you have to keep that connection going.

Attorney Journal Orange County | Volume 128, 2016 25

Web Security for Law Firms

by Miguel Vega

D

ue to their regular dealings with personally identifiable information (PII), law firms should take measures to reduce the chances of a data breach. PII can be used to identify, contact, or locate a single person or identify an individual in context. In the hands of wrongdoers, PII can be used for identity theft, fraud, or simply be sold to someone else who can be more creative.

It is extremely important to acknowledge that law firms are, in fact, PII repositories that have access to information such as names, birthdates, Social Security numbers, addresses and state identification numbers. It would be very naïve to believe that a data breach could never happen to your firm.

Maybe your firm is smaller or less known than others, but studies have shown that as many as 1 in 4 firms have been victims of a data breach. This data should encourage you to consider “a worst-case scenario” and develop a plan for protection. Always take the extra step to ensure that you are doing your part in keeping your information and your clients’ information safe. This post will give an overview of some of the simplest things that you can do to keep potential hackers at bay.

Cloud Services If your firm isn’t large enough to have a dedicated IT staff who can manage its infrastructure, or if a full-time IT position isn’t in the budget, cloud services are an excellent way to get professional IT services at a fraction of the price. A cloud service is any resource that is provided over the Internet.

In a traditional scenario, users would install software on their computers and save documents locally on their hard drive.

Although common, this scenario is prone to various problems.

Hardware is susceptible to failure, and not using best practices when it comes to security may leave your data vulnerable.

Cloud services typically have an entire team of engineers who dedicate their time to developing a service that is fast, secure and reliable. Storing documents in the cloud allows you to access them whenever and wherever you choose. This also eliminates workflow pitfalls such as forgetting your laptop, or worse, losing it or having it stolen. Services such as Dropbox, Google Drive and Microsoft OneDrive are all excellent examples of free cloud storage. For larger firms, you may rent or lease infrastructure components, such as servers, for a fraction of what it would cost to actually purchase the hardware and have it configured and maintained. In terms of security, when using a cloud-based service, the responsibility for keeping your data safe now shifts from your firm to a third party. This does not mean that the risk of a data breach is eliminated, but it is considerably lessened.

Password Management Despite the importance of passwords in a business environment, bad practices are still heavily prevalent. Various tools can be used to crack passwords, but they aren’t entirely necessary if users fail to do their part to protect themselves through the use

26 Attorney Journal Orange County | Volume 128, 2016

of password management.

As a basic rule of thumb, passwords should never be written down and kept in an obvious location. Great examples of what not to do include passwords written on sticky notes on monitors or underneath keyboards. Although in these instances someone would have to be physically present to obtain this information, it is best to be cautious and assume that anyone could compromise your information.

Login Security Utilizing these tools can eliminate the risk of someone rummaging through your email and personal data completely undetected: • Two-factor authentication: The use of another authentication method in addition to a password.

• Login tracking: receiving notifications when someone logs in to your account; or keeping record of the locations where your account logs in from.

Password Strength Brute forcing is an attack which is aimed at weak passwords that lack complexity. The method includes trying to guess every possible combination until one works.

To avoid this, many sites and services use password policies. These policies serve as a template, which assist users in creating strong efficient passwords. Normally they recommend a password to be a certain length and use a variety of characters such as upper and lowercase letters, numbers and symbols. The idea is to make a password as complex as possible, so although the password “Password1!” meets all of the requirements, it doesn’t necessarily mean it’s secure.

Because of this, passwords have now evolved into passphrases which use a combination of words instead of one. When choosing a passphrase, it’s important to choose something memorable and personal, such as combining the name of your favorite food with your favorite actor, “D!c@pri0Pizz@.” But, try to avoid common phrases such as song lyrics or famous quotes, as these may be easier for someone to guess.

As a last tip, it’s good to get into the habit of changing your passphrase at least once every 90 days. This ensures that anyone who is able to obtain it can only use it for a limited time.

Email Entire books have been dedicated to detailing ways in which email can be used maliciously. From an attacker’s standpoint, having access to a direct email address could allow them to target someone directly. In 2015, an American network technology company named Ubiquiti Networks Inc. reportedly lost $46.7 million because of a spear phishing email. Unlike regular phishing, where fraudulent emails are sent to several recipients, spear phishing involves targeting

someone directly.

In the above example, thousands of executives around the country were sent an email appearing to be an official subpoena from the U.S. District Court in San Diego. The email included the executive’s name, company and phone number. In order to obtain further details about the subpoena, the recipient was to download the document. Unfortunately, the download link installed a RAT (remote access Trojan) which recorded keystrokes and gave access from the victim’s computer to the attacker.

You should always be wary when it comes to following links or downloading attachments from emails. Always keep an eye on the “from” email address and verify it is from a trusted source. If an email seems to be generic and makes indirect references to you or your firm, and addresses you by “user,” “customer,” or “member,” instead of by name, there is a good chance you’ve encountered a phishing email. It is important to remember that companies will never ask you to disclose sensitive data through email. If ever in doubt, simply try calling the individual to verify legitimacy.

Workstation Security The gateway to access your data is through your workstation.

Whether it be a laptop or a desktop, the same basic principles apply in keeping your information safe.

User account: Make sure that your user account is secured with a passphrase. This will eliminate the basic risk that if someone gains physical access to your machine, it won’t autologin and have its contents made available.

Updates: Be sure to regularly check for updates to your operating system. As new flaws are discovered, software patches are deployed to fix vulnerabilities and eliminate attack vectors. Keeping your machine updated means reducing the ways a hacker could gain access to your system.

Wi-Fi: If using a mobile workstation, be wary about connecting to unsecure, free Wi-Fi hotspots. Malicious users can potentially look at the data that flows from your computer Attorney Journal Orange County | Volume 128, 2016 27

to the wireless router. Being on the same network as an attacker also makes it substantially easier for them to compromise your system. One of the most notorious attacks for public Wi-Fi is known as a Man in the Middle (MITM) Attack. In this situation, a user is able to reroute traffic between you and the router or hotspot. Instead it goes from you, to the attacker’s machine, to the router.

As it passes through the attacker’s machine, your data can be searched for passwords, account numbers etc. The worst part is that since it goes to the router afterwards, your browsing experience is not affected and you are completely unaware.

Antivirus: Antivirus applications do more than simply keep out viruses. Normally they come as antivirus suites that also check for malware, spyware, spam, intruders and an array of other problems. Like operating system updates, antivirus vendors like Norton, McAfee and Kaspersky regularly push out updates that keep your antivirus application knowledgeable about the most current threats.

It is also important to regularly perform scans of your system to ensure that nothing went unnoticed.

Peripherals: Curiosity is always piqued when finding a USB flash drive on the ground. We rarely think twice about plugging it into our computer to look at its contents. There are now various applications that can be installed on flash drives to make them automatically install viruses on your computer simply by plugging them in. Although it seems highly unlikely, this method was actually used to deliver one of the most intricate pieces of malware to Iranian nuclear power plants. Never plug in a foreign device to your main workstation, and always be sure to scan it for malware from another machine before use.

Conclusion All computer users should be conscious of security principles regardless of who they are. When it comes to data security, everyone is at risk. Taking preventative measures is always the best course of action to ensure you don’t fall victim to compromise. Although risk can never truly be eliminated, being conscious of your actions and establishing best practices can certainly mitigate the chances of falling victim to a cyber threat. n Miguel Vega is a Web Developer at Consultwebs and provides services, including: planning, building, supporting internal and public-facing web applications, website, plugins and routinely analyzes and evaluates security risks within the Consultwebs code and network infrastructure.

Learn more at www.consultwebs.com.

28 Attorney Journal Orange County | Volume 128, 2016

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McIntyre’s Civil Alert Organized Succinct Summaries

by Monty A. McIntyre, Esq.

Monty A. McIntyre has over 30 years of experience as a mediator and arbitrator. More than 35 years of experience as a civil trial lawyer representing both plaintiffs and defendants in business and commercial, bad faith, brain injury, construction, land use/CEQA, medical malpractice, personal injury, real property and wrongful death cases. To schedule a meeting with Monty A. McIntyre contact Kelsey Hannah at ADR Services, Inc. at 619-233-1323 or kelsey@adrservices.org

CALIFORNIA COURTS OF APPEAL Appeal Hjelm v. Prometheus (2016) _ Cal.App.4th _ , 2016 WL 5815768: The Court of Appeal affirmed a jury verdict awarding plaintiffs economic damages of $11,652 and noneconomic damages of $60,000, and an attorney fee award of $326,475.00, in an action by tenants for damages caused by a bedbug infestation and a raw sewage problem in their apartment complex. The Court of Appeal concluded the appeal of the verdict was untimely, and the trial court properly awarded attorney fees under Civil Code section 1717. (C.A. 1st, filed September 9, 2016, published October 5, 2016.)

Attorney Fees Wertheim LLC v. Omidvar (2016) _ Cal.App.4th _ , 2016 WL 5462093: The Court of Appeal affirmed the trial court’s order denying a motion to recoup attorney fees after a lender/ judgment debtor obtained a reversal of a judgment confirming a $672,122 arbitration award against the lender and the superior court released all deposited funds to the lender. The trial court properly denied the lender’s motion to recoup attorney fees. (C.A. 2nd, September 29, 2016.)

Civil Procedure Moran v. Prime Healthcare (2016) _ Cal.App.4th _ , 2016 WL 5815785: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, to a third amended complaint alleging violations of the Unfair Competition Law (Business & Professions Code, section 17200), the Consumer Legal Remedies Act (Civil Code, section 1750 et seq.), and also seeking declaratory relief arising from variable pricing practices of a hospital emergency room charging a self-pay person substantially more for the same care than a person covered by either a government-sponsored program or private insurance. The Court of Appeal concluded that, while most of the claims asserted by plaintiff lacked merit, he sufficiently alleged facts supporting the three causes of action

30 Attorney Journal Orange County | Volume 128, 2016

on the basis that the amount charged by defendants to self-pay patients was unconscionable. (C.A. 4th, filed September 14, 2016, published October 5, 2016.)

Class Actions Nicodemus v. St. Francis (2016) _ Cal.App.4th _, 2016 WL 4800893: The Court of Appeal reversed the trial court’s order denying class certification in an action alleging that a medical provider charged more for medical records than the amounts specified in Evidence Code section 1158. The Court of Appeal concluded that the trial court erred in denying the motion for class certification. (C.A. 1st, filed September 9, 2016, published October 6, 2016.)

Contracts LSREF2 Clover Property 4 v. Festival Retail Fund 1 (2016) _ Cal.App.4th _ , 2016 WL 5765423: The Court of Appeal reversed the trial court’s order, following a bench trial, finding that a guarantee was not enforceable under a sham guaranty defense. The Court of Appeal ruled that, because defendant structured the transaction and decided that a separate affiliate entity would take out the loan and take title to the property, the trial court erred in applying a sham guaranty defense and entering judgment for defendant. (C.A. 2nd, October 4, 2016.)

Damages (Future Loss of Earning Capacity) Licudine v. Cedars-Sinai Med. Center (2016) _ Cal.App.4th _ , 2016 WL 5462099: : The Court of Appeal affirmed the trial court’s order granting a new trial on damages rather than entering a judgment notwithstanding the verdict for the defendants. Plaintiff suffered injury during a gallbladder surgery that will have lifelong repercussions. She sued for malpractice and sought damages for the resulting diminution in her earning capacity. The jury awarded plaintiff $730,00 for loss of earning capacity. Before such damages may be awarded, a jury must (1) find the injury that the plaintiff sustained will result in a loss of earning capacity, and (2) assign a value to that

loss by comparing what the plaintiff could have earned without the injury to what she can still earn with the injury. (See Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153 (Fein); Storrs v. Los Angeles Traction Co. (1901) 134 Cal. 91, 93 (Storrs).)

No case has yet articulated how certain future loss of earning capacity must be. The Court of Appeal ruled that the jury must fix a plaintiff’s future earning capacity based on what it is “reasonably probable” she could have earned. Because the plaintiff in this case did not adduce any evidence to establish that it was “reasonably probable” she could have obtained employment as an attorney or any evidence on the earnings of lawyers, the trial court did not abuse its discretion in determining that the jury’s $730,000 award for lost earning capacity was not supported by substantial evidence. (C.A. 2nd, September 29, 2016.)

IS YOUR LAW FIRM MAKING THE BEST IMPRESSION?

Medical Malpractice Markow v. Rosner (2016) _ Cal.App.4th _ , 2016 WL 5765470: The Court of Appeal affirmed a judgment against defendant physician Rosner for $5.2 million (after reducing the noneconomic damages to $250,000 per Civil Code section 3333.2) in an action for medical malpractice arising from pain management treatment that rendered plaintiff Michael Markow quadriplegic.

The Court of Appeal reversed the portion of the judgment finding defendant Cedars-Sinai Medical Center (Cedars) was 40% at fault on the basis that defendant Rosner was the ostensible agent of Cedars. The trial court erred in not granting a motion for judgment notwithstanding the verdict on this issue because, in Conditions of Admissions forms that plaintiff signed on 25 separate occasions, Cedars unambiguously informed plaintiff that all doctors furnishing services to patients were independent contractors. (C.A. 2nd, October 4, 2016.)

Real Property Kalnel Gardens v. City of L.A. (2016) _ Cal.App.4th _ , 2016 WL 5462098: The Court of Appeal affirmed in part, and denied in part, the trial court’s decision denying a writ petition seeking to overturn respondent’s decision to halt a previously approved 15unit housing project in Venice. The Court of Appeal dismissed the appeal in part as to the developer’s cause of action based on the Housing Accountability Act because the developer did not seek appellate review by way of a writ petition as required by that statute. The Court of Appeal affirmed as to the remaining causes of action because there was substantial evidence that the proposed project violated the visual and scenic elements requirement of the California Coastal Act, and because the Coastal Act takes precedence over statutes awarding density and height increase bonuses for proposed residential developments that include affordable housing units. (C.A. 2nd, September 29, 2016.)

LSREF2 Clover Property 4 v. Festival Retail Fund 1 (2016) _ Cal.App.4th _ , 2016 WL 5765423: See summary above under Contracts. n

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View our portfolio at skidmutro.com Attorney Journal Orange County | Volume 128, 2016 31

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