Bar Soap – March 2017

As I mentioned in my last Bar Soap, the Contra Costa High School Mock Trial Competition was on the horizon. It has now taken place and it was the usual tremendous success. Miramonte High School was the winner this year. That makes two years in a row for Miramonte. I served as judge two nights during the preliminary rounds. I never cease to be impressed by the skill and enthusiasm of all the participants who appeared before me. Another shout out needs to go to all the volunteer judges. Many of our sitting judges volunteer their time, as well as many of our local attorneys. Additionally many of our local judges and attorneys spend months with the high school students, mentoring them as they prepare for the competition. Thanks to all for making it an incredible experience.

Let’s chat now about the concept of “flouting the law.” By that I mean the issue of so many drivers obviously operating motor vehicles while using their mobile devices in obvious view of anyone who cares to look. People ask me, “Isn’t there a law against that?” In fact there is. With that recurring question in mind I asked a CHP officer and several local police agency officers if their respective agencies were writing tickets for mobile telephone use while driving, as well as texting and driving. I was told by all that indeed they are writing scores of tickets. However, the problem is so big they cannot possibly cite everyone, even when they see the violations. Otherwise, that is all they would be writing. I then contacted a traffic court commissioner and inquired if those types of cases are arriving in traffic court with any frequency. I was advised that at least 25 cases per day come before one traffic court on that very issue. So folks, it is not that the police are not writing tickets. It is also not that the cases are not getting to court. It is simply that the people are flouting the law. As an aside, I recently asked a local police officer if her municipality benefited financially by writing more traffic tickets. Her answer surprised me. Most of the revenue goes to the State of California, not to the local municipality.

Inn of Court

It’s time to mention once again our wonderful Robert G. McGrath American Inn of Court. Hard to believe we are coming up on 20 years of its existence. Goodness, I was president of the Inn in 2006 and 2007. We had our 10 year anniversary celebration back then and we presented an award to Judge McGrath’s wife. Wonder what the Inn has planned for the 20 year anniversary? If you are not a member, please get an application. There is a waiting list. It is a very fine organization and you will not be disappointed at any meeting with the presentations and the dinner following the presentation. This year our Inn president is Dean Barbieri. Great name for a law school dean I’m thinking!

On the Move

As for people on the move, we know that Dean Barbieri moved into the Inn of Court president’s spot. So who else is on the move? I see that Ken McCormick has hung out his own shingle. He now has a new position at McCormick Law Firm. Rob Robards has a new position at the Law Offices of Robards & Stearns. Rob was my new associate way back when I opened the new Sacramento office of Ropers, Majeski, Kohn, Bentley, Wagner & Kane. And speaking of Ropers Majeski, our new Bar President Philip Andersen and I were colleagues at that firm in the 90’s. 1990’s that is, not 1890’s. And I guess, speaking of me, I was just elected to the board of the Walnut Chamber of Commerce. And I am now a proud member of the Mt. Diablo Beekeepers Association and I just got my Ham radio license. My wife asked, so where do you think you can find the time for all that plus everything else? We shall see. The honey is awfully good I must say.

The 100 Club of Contra Costa County is dedicated to provide immediate financial and moral support to the surviving spouse and minor children of peace officers and firefighters who have died while in the line of duty in the county; to assist with the continuing educational needs of the children; and to provide ongoing emotional support to the family. The current president of that wonderful organization is Dominique Yancey, an attorney in the District Attorney’s Office.

For those of you who missed it, Jill Fannin is our new Presiding Judge. Not sure if congratulations or condolences are in order. It is a two-year term and as for all those budget issues we hear about with the courts: they are in her lap now. I will however offer congratulations. For my practice in the Civil Courts in Martinez, the only change we will see is Judge Austin back in place in Judge Fannin’s spot on the civil bench. Anyone notice that spring in his step now that he is not the PJ? Lots of other changes, but you can look them up on your own. We have seen the retirement of Judge Maddock, and the rumors that a couple of other judges will soon be out the door. If you have your judicial application on file, there might be a chance for you to get a spot. By the way, how many of you have downloaded a judicial application? I think there is even a question about your mother’s mother’s next door neighbor’s nickname. It cannot be completed in a weekend is all I am saying.

In Memoriam

Every Bar Soap comes with the mention of the passing of local attorneys and luminaries. This one is no different. Wayne V.R. Smith passed on January 12 of this year. He was a wonderful person and practiced right up until the time of his death. He practiced law in Northern California for 45 years. Wayne was a University of Texas at Austin Law School alum. He died unexpectedly of a heart attack.

Henry O. Noffsinger of Martinez passed in November of last year. He graduated from San Francisco Law School and practiced until his retirement in 2004.

Lee Bardellini of Hoge Fenton recently passed. A very nice man and a very well respected Bay Area attorney, Lee graduated from Hastings School of Law.

Although not a lawyer, but a friend and former Fire Chief of the Consolidated Fire District, William Maxfield died on January 8 of this year. After retirement he did not let any grass grow under his feet. He started a company called 9-1-1 Consulting and among other things, was instrumental in getting a number of fire safety regulations enacted into law.

Another Issue

An issue worth mentioning to practicing attorneys is the withdrawal from representation of a client due to non-payment of fees. That is a sticky issue and all too often a problem in our industry. The point which needs to be made is that at all times one must be aware of confidential client information. That means one must never state in a declaration in support of withdrawal that the withdrawal is because the client is not paying. I just saw such a declaration in a case. It obviously puts a client in a disadvantage in relation to the “other side.” Initially one should advise a conflict has arisen such that withdrawal is required. If necessary at some point an offer of an in camera discussion with the judge may be offered. One can certainly see that an opponent knowing a client cannot pay his counsel gains a distinct advantage.

Keep your eyes and ears open for a Civil Jury Verdicts column to follow. I even have a jury verdict of my own to report. And continue to keep those cards and letters coming.

Mock Trial Results – 2017

A nice way to give back to the community: Matthew Guichard volunteers each year as a judge for the Contra Costa County Mock Trial Competitions. The competition is in February. The high school students do an incredible job and you can see all the hard work they did.

The 2017 mock trial results are in! Congratulations to Miramonte HS for placing 1st. 2nd place went to California HS, followed by Acalanes HS and Alhambra HS. Well done!

You can read all about it here:

Bar Soap – February 2017

Here we are starting another new year. Seems as though we just started 2016 and here we are in 2017. I know, I know, many of you just want to put 2016 behind you. But many good things happened in our wonderful Contra Costa County legal community in 2016.

If it is January I am preparing for trial. Not sure how that always seems to happen, but once more I spent the vacation time between Christmas and New Year’s Day, preparing for a jury trial. At least this year it is in Contra Costa Superior Court. That makes it a little less stressful. Although I must say, trials have become much more stressful in the past few years. Anyone disagree?

I keep mentioning the MCLE Spectacular and indeed it was once again spectacular. The attendance at the event is truly amazing and it is always the time to catch up with old friends and acquaintances, as well as to earn those required credits. You better get there early as the main hall completely fills up for the morning breakfast session. As an aside, it was nice to see so many retired attorneys who still keep up with the required continuing legal education requirements. So, is one really retired from the practice of law if one keeps the license current? Not sure what I will do when that day comes. And you?

The Contra Costa Bar Association Holiday party was a hit, as was the Robert G. McGrath American Inn of Court holiday party. Attending the local Bar party is a great way to get to know the members of the Bar
Board, and to get to know the hard working staff members of the Bar. Those are the folks who make it all run so smoothly. I highly recommend membership in the local Inn of Court. I have been in it from day
one and it has been a wonderful experience; and one can earn legal education credits at each meeting, most of which are the harder to get specialty credits like ethics. For years we had six meetings a year. Now we have eight. Between the MCLE Spectacular each year and the Inn of Court meetings, you can get all your required continuing education credits.

And speaking of holiday parties. I attended the Emison Hullverson holiday party in San Francisco. I think every plaintiff’s counsel in the City attended. I was all dressed up. I think when you really make it as a
successful personal injury lawyer, you no longer have to dress up for holiday parties. I think I counted two other attorneys with neck ties. Hope springs eternal.

The 2017 Contra Costa Superior Court Judicial assignments came out awhile back. Lots of changes. Jill Fannin is the new Presiding Judge. Barry Baskin is the Assistant Presiding Judge. That means in two years Barry Baskin will be the PJ. In my civil world, Steven Austin is taking Jill Fannin’s spot and all else in civil remains the same.

Still not getting the flow of jury trial results I need for a “Civil Jury Verdicts” column, so I will report a couple of trials in this “Bar Soap.” Steve Knuppel reported a trial he had in Alameda County Superior Court. DB Lin Construction v. Wang, Case No. HG15768198 was tried before the Honorable Robert McGuiness. Factually the case involved a home renovation gone bad. Steve Knuppel represented the homeowner defending a claim for payment and prosecuting a cross complaint for defective workmanship. Nancy Weng and Palani Rathinasamy served as co-counsel with Steve. Alexander Chen of Irvine represented the contractor. The jury returned a verdict of $124,410 in favor of the homeowner for breach of contract and negligence. The usual post-trial motions are pending.

Banta et al v. City of Walnut Creek et al was tried in the United States District Court, Northern District, San Francisco before the Honorable Charles R. Breyer. Case No. 3:13-CV-00342-CRB. Plaintiffs were represented by Larry Peluso of Topanga, Anthony Luti of Hollywood and Dennis Wilson of Burbank. Noah G. Blechman and Amy S. Rothman of the McNamara firm of Walnut Creek, represented the defendant City and police officers. Anthony Banta was shot and killed by Walnut Creek police officers after a confrontation. The police had been called to an apartment in Walnut Creek by Banta’s roommate and the roommate’s girlfriend. When the police arrived, they were confronted by Banta who was holding a large knife. Banta jumped down a staircase towards the officers and the police fired. Plaintiffs demanded $15 million in their complaint. The jury returned a defense verdict. As an aside, I was the Hearing Officer in the Coroner’s Inquest related to that Banta death.

I think I made a bit of fun last column with the plethora of organizations and awards given out to lawyers. Guess what folks? I was recently selected as a 2017 member of “Lawyers of Distinction.” Can you top that? Just kidding. I know there are many such awards. I just had not heard of “Lawyers of Distinction.” I think I get a customized plaque, among other things.

And finally, speaking of new organizations, I joined the Walnut Creek C.E.R.T. recently. That is the Community Emergency Response Team. Went through the training program and several advanced classes in communications and medical treatment. Believe it or not I actually got my HAM radio license and an actual radio. All interesting and fun. Pleased to join a number of citizens helping the community in the event of a disaster. Also surprised and pleased to see a number of attorneys already involved in the C.E.R.T. program.

As many of you know, I am a member of the State Bar Mandatory Fee Arbitration Panel. Several times a year I arbitrate fee disputes between clients and counsel. Nice to know someone reads my Bar Soap columns, as Attorney Lorraine M. Walsh advised she saw the mention of my role as a fee arbitrator and she is also on the panel. In fact, she is a member of the Mandatory Fee Arbitration Committee and currently serves as the Vice Chair. Recently Lorraine wrote an article on the subject for the Daily Journal, with a MCLE test included. Now I know whom to call when I have a question about fee arbitrations and legal malpractice issues.

Any of you inundated with proposals for marketing your practice through social media? I am swamped with such proposals. I must say in the past we have signed up for programs which purportedly get high value cases to our firm “And only to our firm.” But I must say we have never seen a benefit by way of real cases. I recently attended a seminar for marketing our practice areas. Sounds like the same pitch I hear from everyone. I would like to know, does anyone have a story to tell in which they have had great success getting case referrals from a social media marketing source? Let me know. And I am not asking for that source. Just want to know if it really works.

That’s enough for now. Please keep those cards and letters coming. Actually email or text please.

Davis Move: Sharing Office Space – Find out more about Will Portello, Kira Wattenburg & Heather Tattershall

Here’s some additional information regardng our Davis office. There are three attorneys/firms sharing office space at 355 2nd Street, Suite B. They are Will Portello, Heather Tattershall and Kira Wattenburg.

Will Portello grew up in Davis, graduated from UC Davis, attended law school at the University of Oregon, and is a member of both the California and Oregon state bars. He has been practicing law since 1993. He has been with Guichard Teng & Portello since 1997. We have had an office here in Davis since 2004, and have other offices in Walnut Creek, Willows and San Francisco. We handle civil litigation and trial advocacy, including the representation of injured parties in personal injury matters, as well as the victims of sexual abuse. In addition, we represent employees in wage-hour disputes. Our additional practice areas include business litigation and insurance coverage issues. We also have attorneys who handle immigration and removal matters, administrative licensing appeals, and business formation. You can reach Will at

Kira Wattenburg King attended UC Davis, and graduated from the UC Davis School of Law. She dedicates her legal practice to Estate Planning, particularly in the areas of Revocable and Irrevocable Trust formation and administration. Her advanced Estate Planning skills include probate avoidance, tax and business planning in close coordination with her client’s financial advisors. Kira also offers Probate Administration and Conservatorships among all other general Estate Planning legal services.

Heather Tattershall grew up in Davis, attended UC Davis, and graduated from the McGeorge School of Law. She has been practicing law since 1995. Her practice is limited to family law, including Dissolution of Marriage, Child Custody and Visitation, Child and Spousal Support , Complex Property Division, Stepparent Adoption, Restraining Orders, and Post-Judgment Order Enforcement.

Immigration News – Politico article attached

President Trump did not take any action today regarding NAFTA or the Deferred Action for Childhood Arrivals (DACA) program, and Politico reports that, according to a USCIS spokesperson, DACA applications and renewals continue to be processed normally.

Here’s an article from POLITICO that you might find interesting:

Trump administration signals no immediate reversal on Dreamer program

Applications from so-called Dreamers seeking to renew their immigration status and work permits are being processed normally, despite President Donald Trump’s repeated claims that the program set up by President Barack Obama is illegal, a government spokesman said Monday.

A spokesman for U.S. Citizenship and Immigration Services told POLITICO Monday that there was no immediate change to how the agency handles applications and renewals under the Deferred Action for Childhood Arrivals program Obama set up in 2012.

“We are still accepting/processing DACA requests under existing policy,” USCIS spokesman Steve Blando said Monday.

It’s unclear precisely how many applications USCIS approves each day, but according to the most recent public statistics — from the third quarter of last year — an average of about 140 initial applications and 690 renewals were approved each calendar day.

As of September 30, 2016, 73,705 renewals and 46,229 initial applications were pending. It’s unclear whether those numbers surged due to applicants fearing Trump might end the program and how much of that backlog was cleared before Trump was

However, no move to shut down the program was among the set of presidential directives Trump signed Friday and Monday.

White House press secretary Sean Spicer suggested Monday that despite Trump’s promise to move “immediately” against the Obama immigration actions, discontinuing the DACA program is not a top priority of the new president.

“I think the president has been clear that he is going to prioritize the areas of dealing with the immigration system, both building the wall and making sure that we address people who are in this county illegally. First and foremost, the president’s been very, very clear that we need to direct agencies to focus on those who are in this country illegally and have a record, a criminal record or pose a threat to the American people. That’s where the priority is going to be,” Spicer said during his first briefing for reporters.

Spicer was vague about plans for those who currently have deferred action status or may be applying for it or renewing it soon.

“We’re going to continue to work through the entire number folks that are here illegally but right now the clear focus is on” those who pose a security threat, the spokesman said.

Later in the briefing, Spicer was vague about whether Trump plans any executive action and indicated that the White House is waiting to see what legislation on the issue might find traction on Capitol Hill.

“I don’t have anything further on the executive action front,” Spicer said. “Give us a little bit of time, we ‘ll see what Congress moves forward with.”

in recent weeks, Trump has struck a softer tone on immigration, especially with regards to the so-called Dreamers, who entered the U.S. illegally as children.

“We’re going to work something out,” Trump told Time magazine last month. “On a humanitarian basis it’s a very tough situation. We’re going to work something out that’s going to make people happy and proud. But that’s a very tough situation.”

On Sunday, White House Chief of Staff Reince Priebus appeared to signal that Trump did not intend to move quickly to shut down the DACA program.

“I think we’re going to work with House and Senate leadership as well to get a long-term solution on that issue,” Priebus said on “Fox News Sunday.” “I’m not going to make any commitments today, but, you know, I’ve obviously foreshadowed there a little bit.”

Josh Gerstein is a senior reporter for POLITICO.

One Hundred Club of Contra Costa County

Matthew Guichard and Erika Portillo are members of the One Hundred Club of Contra Costa County. In case you don’t know what this club is we’ve posted the below from their website:

“The One Hundred Club of Contra Costa County was formed in 1984 by a group of concerned citizens who care about the welfare of families of peace officers and firefighters who lost their lives as a result of and while in the line of duty in Contra Costa County. We are a 501 (C) (3) Exempt Organization.

Upon our formation, we became the sixty-second club formed in the United States.”

You can learn more about it here and ways that you can help:

Bar Soap – November 2016


Many things are happening locally with our legal community. So many in fact that it is impossible to learn about them, much less comment on all of them. But I will give it a try.

MCLE Spectacular, Spectacular!
You actually don’t need my reminder, but the Contra Costa County Bar Association’s 22nd MCLE Spectacular is taking place Friday, November 18, 2016. It is an event not to be missed. Not only is it a good opportunity to pick up necessary and meaningful legal education credits, but it is also a great opportunity to see and catch up with old friends. See you there.

Mock Trials
I had the privilege of sitting as a judge at the Federal Building in San Francisco for the Empire Mock Trial program for national high school teams. I saw several colleagues from Contra Costa County also sitting in as jurors and judges. Many of you regularly assist with our local Contra Costa County High School Mock Trial Competition. Volunteer for the Empire program if you have the chance. I sat in on trials for teams from Cleveland, Miami, Riverside (California) and Washington State. Very impressive performances by all.

CourtCall Bandwagon
Back on my bandwagon concerning CourtCall appearances. Those appearances actually result in more court time than less. Please attorneys, listen to the Judge and offer information which is helpful to calendaring and case analysis. It is not a time to bring up discovery disputes, long-winded stories or long-winded excuses. It is painful to listen to attorneys wax eloquent on irrelevant issues and the entire audience in the courtroom an unwilling participant. Hey, I have an idea; pretend you are actually in Court! I did hear an excuse from a CourtCall participant which made me laugh. An attorney stated the reason a case had not been timely mediated as agreed was due to “Attorney lethargy.” Nice!
So, I have a thought about those pesky CMCs: Let’s go to the tentative ruling format. In most cases the parties file timely CMC statements and the Court issues a tentative CMC ruling setting further hearings, mediation completion dates and trials. No appearance is necessary, and we do not have to hear any more lawyers on CourtCall. That is of course unless the Court’s tentative ruling requires attendance.

People on the Move:
I note Manoogian Law has moved to 800 South Broadway, Suite 304, in Walnut Creek. And, not sure if I mentioned it before, but Robert M. Slattery (Bob) has officially wrapped up his litigation practice after 40 years and has transitioned into a full time “Neutral.” I’m happy for Bob, but a bit sad as he was a regular contributor to reports about “Local Civil Jury Verdicts.” Also, I’m not sure if it is just the local water, but we continue to hear of lawyers leaving firms (big and small firms that is) and going solo. An advantage is the only partner one has to deal with is that one in the mirror each morning and profits (if there are any) don’t have to be shared. Don’t forget to let us know if you have gone out on your own, or joined another firm. I love to write about people on the move, and speaking of people on the move, local retirees are making me jealous! I see many former government lawyers at bocce who report they love retirement and they love that retirement check coming in each month. Must be nice!

I was invited to join one of our local Rotary Clubs. No surprise, I accepted the invitation. Very enjoyable presentations and pleased to see so many of our local attorneys as members of the various local clubs.

Super Lawyers
So, I thought I was something special being a Super Lawyer, but then I started to see that every single lawyer in the state is a Super Lawyer or a Top Lawyer, or a NorCal Top Lawyer, or an East Bay Top Lawyer, or a Top Ten Lawyer, or a member of The National Association of Distinguished Counsel, or whatever. We are clearly an over-performing group! Congratulations to us all!

Fee Arbitration
I sit on the panel as a State Bar Fee Arbitrator. Just a reminder to ALL attorneys: Ensure you have a legal services agreement with your client(s). (Hint: This would probably be an excellent topic for our MCLE Spectacular next year.) It is required in most matters and I cannot tell you the number of cases in which there is NO agreement. The first question in any fee dispute matter is “Did you execute a legal services agreement…?” And a little tip to go on top of that, even if there is a written fee agreement, the fees cannot be unconscionable. That means at a minimum there must be some relationship between the fees charged and the work performed.

Sadly I am reporting regularly on those we lost recently. Jim Hazard and Ted Merrill recently left us. Jim a long time local lawyer, previously served on the Walnut Creek City Council. He was a top notch attorney, a member of ABOTA and settled many a civil case in his role as a mediator. I only knew Ted Merrill as a judge, but many remember him as the head partner at the Merrill law firm in Danville. That firm later became the Gagan et al firm. As a Deputy DA, both my first murder trial and my last murder trial were held in Judge Merrill’s department.

I was also very sad to hear of the untimely passing of John T. Nejedly. John was a local attorney, a member of the Contra Costa Community College Board, the son of former District Attorney and State Senator John A. Nejedly, the brother of Contra Costa County Supervisor Mary Nejedly Piepho and the brother of Central Costra Sanitary trustee James Nejedly. He was only 52 years old.

Circling back a bit on the concept of continuing legal education, I must say I am inundated daily with offers of programs on social media marketing for lawyers. For some years continuing education seemed to focus on evidence, ethics, mediations, etc. Seems now most of what I see involves marketing, web site crafting, blogging and how to be a super lawyer (just kidding on that last one). Nothing wrong with that, just a change in how we do business I guess.

Keep those cards and letters coming. I cannot write about your news if you don’t let me know.

Civil Jury Verdicts – October Issue of Contra Costa Lawyer

Civil Jury Verdicts

gavelIndeed it has been some time since I penned the popular Civil Jury Verdicts column. Same old story: Very few attorneys are reporting their jury verdicts to me. I will say, trials are getting out in our Contra Costa Superior Courts, so I know there are cases to report. I also know local lawyers who are going to trial in other venues, including Federal Court. And, I am aware of significant settlements here in Contra Costa Superior Courts, as well as in other venues. I will mention all of those cases in our Civil Jury Verdicts column. You just have to report those cases to me. Sounds like a broken record doesn’t it?

Now let’s get down to some case reporting.

Moore vs. Wiebe, Case No. S-1500-CV-282514 LHB was tried in Kern County Superior Court, before the Honorable Lorna Brumfield. Plaintiff was represented by Solomon Green of RG Lawyers, LLP of Encino, California. Our own Bob Slattery along with Denise Billups-Stone of the McNamara firm represented the Defendant.

The Plaintiff, a 49-year-old medically-disabled welder, sued the Defendant, a neurosurgeon M.D., for complications he developed after a laminectomy, facetectomy and a tethered cord release. The surgery took place at Bakersfield Memorial Hospital.

Prior to the trial, the Plaintiff offered to settle for $250,000. Defendant offered to resolve the case by a CCP 998 offer of a dismissal in exchange for a waiver of costs. Doesn’t exactly sound like a meeting of the minds.

After a two week trial, the jury found for the Defendant doctor, in a unanimous verdict. The ouch part for Plaintiff in such med mal cases is there are generally significant expert costs and Plaintiff may very well be on the hook for those.

Thanks to Bob Slattery for reporting the case. He regularly reports cases to me, but looks like he has now transitioned into a mediator (See my next edition of Bar Soap), so I may not see any more Bob Slattery cases. Remember that “Mediation privilege? ” It means he cannot report the mediation cases to me.

An interesting note on medical malpractice cases: My research has reflected over the years medical malpractice cases have the lowest percentage of an outcome in favor of Plaintiffs of any type of personal injury matter.

In June of 2014 I wrote about Arnold vs. Padrah. Contra Costa Superior Court Case No. MSC12-02895.  The Honorable Steve Austin presided. Clyde Long just reported an appellate decision in that same matter.

Recall at the time of my report there was a verdict, but the bifurcated trial on the issue of punitive damages had not yet taken place, and Judge Austin had not yet ruled on the Plaintiff’s quiet title claim of prescriptive easement. Clyde promised to let me know the final result. It took 29 months from start of the trial to the appellate decision.

The jury subsequently awarded $20,000 of punitive damages on top of the $68,000 damages award. Judge Austin granted a prescriptive easement in favor of Plaintiff, and awarded costs of $112,000. The total judgment was $200,000. The judgment was appealed by Defendant. The Court of Appeal recently affirmed the judgment in its entirety.