SAN DIEGO
Volume 159, 2016 • $6.95
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
McIntyre’s Civil Alert: Organized Succinct Summaries
Monty A. McIntyre PROFESSIONAL PROFILE OF THE MONTH
Bonnie A. Rabinovitch-Mantel
Primus Family Law Group, LLP First Things First
Attorney of the Month
Eric Dubin
Dubin Law Firm, Serving San Diego County A Superhero Come to Life for Injured Victims
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2016 EDITION—NO.159
TABLE OF CONTENTS 6 Approaching Litigation Settlement, the Ahimsa Way by Joshua L. Kirsch
8 Avvo’s First Amendment Rights Trump Legal Challenges
6
by Guy Loranger
12 COMMUNITYnews EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson
ATTORNEY OF THE MONTH
PROFESSIONAL PROFILE OF THE MONTH
16 Eric Dubin 22 Bonnie A. Dubin Law Firm, Serving Rabinovitch-Mantel San Diego County Primus Family Law A Superhero Come to Life for Group, LLP Injured Victims by Jennifer Hadley
by Karen Gorden
28 McIntyre’s Civil Alert Organized Succinct Summaries
PHOTOGRAPHY Chris Griffiths STAFF WRITERS Jennifer Hadley Patricia Klier Karen Gorden
by Monty A. McIntyre
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Approaching Litigation Settlement, the Ahimsa Way by Joshua L. Kirsch
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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-
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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.
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Avvo’s First Amendment Rights Trump Legal Challenges by Guy Loranger
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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 8
Attorney Journal San Diego | Volume 159, 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 San Diego | Volume 159, 2016
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Attorney Journal San Diego | Volume 159, 2016
L AW Y E RS H E L P I N G OT H E RS
LEI- CHALA W ILSON BUILDING BRIDGES
A criminal defense attorney for over
25 years, Lei-Chala Wilson also serves as the Legal Advisor to the San Diego Black Police Officers Association.
As Legal Advisor -an unpaid position-
her focus includes improving relations
between law enforcement and minority
communities, educating police officers,
evaluating police practices and accountability, and community outreach.
Community service has been a corner-
stone of Lei-Chala’s professional life. In 2014, she finished six years as President of the San Diego Branch of the National Association for the Advancement of
Colored People. Her long list of service also includes leadership positions with the ACLU of San Diego and Imperial Counties, the San Diego Section of
the National Council of Negro Women, the California Civil Rights Coalition, Volunteers in Parole’s Advisory
Committee, and the San Diego County Public Law Library.
A former deputy public defender with more than 120 jury trials, Lei-Chala represents the accused in various criminal matters
Lei-Chala Wilson is not affiliated with the Law Office of Steven C. Vosseller.
Help us celebrate lawyers helping others. Please let us know of other San Diego County attorneys doing great community service.
Plaintiff Personal Injury (858) 429-4062 www.vosslawyer.com
L AW O F F I C E O F
STEVEN C. VOSSELLER
COMMUNITY news n Johnson & Weaver LLP is pleased to announce the addition of two new attorneys to its San Diego office. Phong L. Tran: Mr. Tran has extensive experience litigating complex securities, mergers and acquisitions, and consumer class action cases. Before joining Johnson & Weaver, Mr. Tran worked at the preeminent plaintiff class action firm of Robbins Geller Rudman & Dowd PHONG TRAN LLP and the well-respected boutique litigation firm of Coughlan, Semmer & Lipman, LLP. In addition, he previously served as a prosecutor, first as a Special Assistant United States Attorney for the Southern District of California and then as a Deputy City Attorney with the San Diego City Attorney’s Office. Mr. Tran earned his Juris Doctor degree from the UCLA School of Law and graduated summa cum laude from the University of San Diego with a Bachelor of KRISTEN O’CONNOR Business Administration degree. Kristen O’Connor: Prior to joining the firm, Ms. O’Connor served as Managing Counsel at clinivation, Inc., where she negotiated clinical trial agreements and provided market clearance submission development and support to global medtech and pharmaceutical industry clients. Ms. O’Connor graduated summa cum laude from the Thomas Jefferson School of Law in 2015. Ms. O’Connor earned a bachelor’s degree from California Lutheran University in 2008, and is an active member of the American Bar Association, San Diego County Bar Association, American Inns of Court—J. Clifford Wallace Chapter, and Lawyers Club of San Diego. n On Thursday, October 13th, Monica Sherman Ghiglia, an attorney at Fragomen, will be awarded the “Inn of Court Pro Bono Publico Award” at Casa Cornelia Law Center’s 9th Annual La Mancha Awards. Monica and twelve other attorneys were selected from a pool of over 200 volunteer attorneys for their commitment to access to justice. Casa Cornelia Law Center is a San Diego nonprofit that provides legal assistance to victims of human and civil rights violations.
MONICA SHERMAN GHIGLIA
Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us
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Attorney Journal San Diego | Volume 159, 2016
n Wilson Turner Kosmo LLP is pleased to announce Sotera Anderson, senior counsel at the San Diegobased litigation law firm, has been named to the State Bar of California Commission on Judicial Nominees Evaluation and Pan Asian Lawyers of SOTERA ANDERSON San Diego (PALSD) Board of Directors. With these esteemed appointments, Anderson will serve in leadership roles at the community, city and state professional levels. On the all-volunteer Commission on Judicial Nominees Evaluation, Anderson will serve a one-year term evaluating judicial candidates who are being considered for appointment by Gov. Jerry Brown. Anderson’s term will begin in February 2017. The PALSD Board of Directors is committed to supporting and advancing the careers of Asian American legal professionals while also promoting and advocating for community interests. As a member of the 10-person board, Anderson will also work to uphold the preservation of the community’s culture, heritage and diversity. Anderson’s term began September 1. n Citing rapid expansion and a desire to provide convenient access to injured victims throughout San Diego County, Mission Legal Center has expanded its personal injury practice by opening additional offices in Carlsbad and Chula Vista. Helmed by father and son trial attorneys Rosalio Munoz and David Munoz, Mission Legal Center’s new Chula Vista office is located at 333 H Street, Suite 5000, Chula Vista, CA 91910. In North County San Diego, Mission Legal Center’s new office is located at 1902 Wright Place, Second Floor, Carlsbad, CA 92008. The two new offices are in addition to the firm’s main office in Mission Valley.
ROSALIO MUNOZ
DAVID MUNOZ
COMMUNITY news n James D. Crosby, who during the past five years has practiced with Henderson, Caverly, Pum & Charney LLP and Klinedinst PC, is returning downtown to resume his active litigation and trial practice. Throughout much of his more than 30-year legal career, Mr. JAMES D. CROSBY Crosby has been an active leader and volunteer in San Diego’s legal community. He currently serves as a Master of the Louis M Welsh Inn of Court and Fiorenzo V. Lopardo Inn of Court, and as a trial skills instructor for the San Diego Inn of Court. Mr. Crosby’s other volunteer commitments include or have included USD School of Law’s Alumni Association, for which he will be 2017-2018 Board President; Casa Cornelia Law Center, the San Diego Volunteer Lawyer Program, and the San Diego County Law Library. In 2017, Mr. Crosby will serve on the State Bar of California Judicial Neutral Evaluation Commission. Mr. Crosby is also a volunteer and frequent contributor to San Diego Lawyer, the monthly publication of the SDCBA. n Joining the ranks of legal luminaries such as Richard Gerry, Harvey J. Levine, Peter J. Hughes and his father, David S. Casey Sr., David Casey Jr.—managing partner of CaseyGerry—has been inducted into the Consumer Attorneys of San Diego’s Past Presidents’ Trial Lawyer Hall of Fame. The award DAVID CASEY JR. will be presented at a special reception held by the Consumer Attorneys of San Diego (CASD) at 6 p.m., Wednesday, September 21, at the La Valencia Hotel in La Jolla, California. The Trial Lawyer Hall of Fame commemorates the career contributions of outstanding CASD members based on their accomplishments as trial lawyers and their service to the public, as well as their leadership. Inductees are carefully selected by a committee of past CASD presidents. Other attributes considered by the committee are the nominee’s advocacy and high ethical standards. The honor has been bestowed since 1999. Casey Jr., a La Jolla resident, has helped clients in a complex range of cases relating to aviation, maritime, premises liability, faulty equipment, government tort claims, complex motorcycle accidents, product liability, trucking and automobile crashes.
n Finch, Thornton & Baird, LLP has added two new Post Bar Law Clerks. Dillon D. Jones is a graduate of the firm’s 2015 summer associate program and will be working primarily in the areas of government contracts, construction law, and business litigation. Ms. Jones received her juris doctor, cum DILLON D. JONES laude, from the University of San Diego School of Law, where she was a member of the Moot Court Executive Board. While in law school, she was a judicial extern for the Hon. Amy D. Hogue of the Los Angeles Superior Court, extern for Hon. Thomas J. Whelan and Hon. Janis L. Sammertino of the U.S. District Court for the Southern BRITTNEY S. SLACK District of California. Brittney S. Slack is also a graduate of the firm’s 2015 summer associate program and will be working in the areas of government contracts, construction law, and business litigation. Ms. Slack received her juris doctor, cum laude, from the University of San Diego School of Law. While in law school, she was a legal intern for Hon. Ronald Prager of the San Diego Superior Court. She was also a writer for the San Diego International Law Journal and served as a Moot Court Associate Board Member. n The law firm of Sullivan Hill Lewin Rez & Engel is pleased to announce that Shannon D. Sweeney has joined the firm as a shareholder in the San Diego office. She will be a member of the firm’s commercial and business litigation, real estate and construction practice groups. SHANNON D. SWEENEY Sweeney has substantial experience in complex corporate litigation, large commercial disputes, and consumer and securities fraud class action lawsuits in both state and federal courts. She also has significant appellate experience. Sweeney is admitted to practice in California, Texas and New York.
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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
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by Jennifer Hadley
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. 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.
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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.”
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
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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 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
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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.”
FULL OF HEART 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
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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
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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
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Attorney Journal San Diego | Volume 159, 2016
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FORWARD MOMENTUM Bonnie Rabinovitch-Mantel’s dedication to putting clients first continues to fuel the growth of Primus Family Law Group by Jennifer Hadley
“F
amily law cannot be practiced as if it were an assembly line. It’s not just as simple as filling out a bunch of forms. Family Law as a general rule is fraught with emotion, trauma, drama, anxiety, and tension. It’s not easy to get divorced, break up the family and then try to move on. These are people’s lives and people’s children and our focus on that is what makes us unique,” says Bonnie Rabinovitch-Mantel, CFLS, and Managing Partner of Primus Family Law Group. “We put our clients first.” This absolute dedication to putting her clients first is precisely the reason Mantel, who has practiced family law exclusively since 2006, merged her successful solo practice with Kim Marie Staron in May 2016 to form Primus Family Law Group. “I opened my own firm, Families 1st Law & Mediation, in December 2012 after working for 7 years for a larger law firm here in San Diego,” Mantel says. “It became increasingly obvious that in order to be able to help as many people as possible, I had to build a team. All of those going through a divorce deserve to have unparalleled representation during this tumultuous time in their life, and in order to provide that to as many people as possible, I needed the support of fellow like-minded, hardworking, family law professionals. Primus Family Law Group
care about them, their children and their financial condition,” Mantel explains. Continuing she says, “Our attorneys, while practicing with the same goals, are all a little different in our respective approaches. I am ‘passionately aggressive,’ according to one of our esteemed San Diego judicial officers,” Mantel says with a chuckle. “Kim and I are quite similar in that regard, and our associate Shane Brengle brings more of a reserved, but still very firm approach. Sean Torley brings a wealth of experience and know-how as our Senior Paralegal, and our office manager Bon Salazar keeps the administrative aspect of our firm running smoothly.” The complementary skills, styles, and family law savvy of the powerhouse team has quickly elevated the firm in the San Diego area. With a new look, including a new website, all new branding, and a comprehensive new marketing strategy, Primus Family Law Group is in a period of growth, which Mantel expects to continue. “We are growing because we do everything we can to ensure that our clients know that our priority is to help families move forward beyond the raw emotion of this life-altering event so they can focus on what’s best for their children. When there are no children involved, we do our best
“We do everything to ensure that our clients know that their wellbeing is first in our mind all of the time.” was formed for people who need zealous advocacy, but also need attorneys who emphasize doing what is right and reasonable in light of their particular facts and circumstances,” she adds.
TAKING STEPS TO SECURE SUCCESS FOR SAN DIEGANS Suffice it to say, in the two years since Mantel was first featured in Attorney Journal, she’s followed through on her vow to raise the bar of excellence in family law representation through taking specific actions. “Talk is cheap,” says Mantel. “Actions speak louder than words.” As such, earlier this year Mantel partnered with Staron, a tenured and highly respected family law attorney with nearly 25 years of family law experience in San Diego. “Two minds are just better than one. I wanted to be able to help more people, and running a solo practice limited my ability to do that. By partnering with Kim, and welcoming Shane Brengle as an Associate, and Sean Torley a Senior Paralegal, I now have a team of like-minded people who share my same dedication to doing what is right, and reasonable. We share ideas and strategies, and by bringing together our individual strengths to form Primus Family Law Group, we are able to provide this client-first representation to a greater number of people in San Diego. There are so many people who need attorneys who truly
to help people find a non-combative, common sense approach to their domestic needs, whatever those needs may be,” Mantel says. However, she is quick to add that although the preference is for amicable settlement, the attorneys at Primus Family Law Group are also passionate litigators who stand up for their clients. “It is part of our job to conduct a cost benefit analysis that explains that what one may achieve after lengthy litigation may not always be worth the ultimate upheaval, both emotionally and financially, not just on that party but on the entire family. That doesn’t mean we ignore what the client is entitled to, nor what particular aspect is important to the clients. We always zealously advocate for our client’s position and if litigation is required or necessary we approach that with the same fervor and passion as we approach all aspects of representing our clients.” The approach continues to be well-received, to say the least. “Our focus and understanding of the big picture in each family law case, while considering those aspects that are of particular importance is what we do best, according to our clients,” Mantel says. “To us, there really isn’t any other way to practice family law. We care about our client, we care about their children— the innocents in every divorce action—and we do everything to ensure that our clients know that their wellbeing is first in our mind all of the time.”
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GOING THE EXTRA MILE Further proof of Mantel’s commitment to putting clients first can be seen through her own dedication to practicing family law as a true expert, by way of earning her Certified Family Law Specialist (CFLS) designation from the State Bar of California this year. To be certified as a Certified Family Law Specialist, Mantel was required to specifically prove significant, actual experience in the areas of: Child Support; Confirmation of Separate Property; Contempt and/or Enforcement Proceedings; Custody of Children; Dissolution of Marriage/Divorce, Legal Separation, or Nullity of Marriage Litigation; Division of Community Property; Legal Separation; Mediation and/or Negotiation of Family Law Disputes; Modification of Support; Psychological Aspects of Dissolution of Marriage; Restraining Orders/Domestic Violence Proceedings; Spousal Support; and Taxation Issues Incident to Dissolution of Marriage. All told, the certification process involved a rigorous application and examination process which includes successful passage of a written examination, completion of specific tasks in the specialty area, attendance at a prescribed number of approved education programs, and peer review. The effort was more than worth it, according to Mantel, as having attained the CFLS designation subsequently put her in an elite class of only a small percentage of attorneys who have put forth the time, hard work, and demonstration of exceptional proficiency in the field of family law. “Earning the California Family Law Specialist designation from the State Bar of California demonstrates my 24 Attorney Journal San Diego | Volume 159, 2016
commitment to my clients to always go the extra mile to ensure that I’m at the forefront of family law education, advocacy, and expertise.”
THE ROAD AHEAD As far as the future is concerned for Primus Family Law Group, Mantel says the team is forging full steam ahead, and will welcome new attorneys to the firm as demand continues to grow. However, she is firm when saying that only those attorneys with the “same work ethic, commitment to doing what is best for the client, and energy will be welcomed to Primus Family Law Group.” “We believe in integrity in working with opposing counsel, to lessen the emotional and financial cost for our clients. Our driving force in every case is to get the parties involved through what is ostensibly the most difficult time of their lives with as little emotional and financial scarring as possible, all the while ensuring that the courses of action taken are right and reasonable.” n Contact Bonnie Rabinovitch-Mantel 2635 Camino Del Rio South, Suite 204 San Diego, CA 92108 P: (619) 574-8000 www.primusfamilylawgroup.com bmantel@primusfamilylaw.com
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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 non-economic 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 selfpay 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 on the basis that the amount charged by defendants to self-pay patients was 28
Attorney Journal San Diego | Volume 159, 2016
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.)
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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 non-economic 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 15-unit 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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