Elder Law - Contra Costa County Bar Association

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Elder Law - Contra Costa County Bar Association

Contra Costa LawyerVolume 22, Number 5 • May 2009The official publication of theB A R A S S O C I A T I O NElder LawWhat is your opinion about a mandatory retirement age?See what your fellow readers have to say!


is pleased to announce the fourth never annualTrivia Bowl for Access to Justicein support of The BAR FUNDFriday, October 2, 20096:00 – 9:30pm • Blackhawk Museum (a.k.a. Behring Auto Museum)Master of Ceremonies Tom BeattyJudge Hon. Norm Spellberg (ret.)Game Show Host Brian Bonney$75 per person - $750 reserved table for 10~ or ~$100 per person for Sponsors / $1,000 Patron table for 10 (includes recognition in event program)$500 to enter a team of 3 (100% of team entrance fees may be taken as charitable tax deduction 1 )Enter a team to compete against law firms and retired judges, or put together an “All Star” team of yourtrivia-savvy colleagues to compete for the perpetual trophy. Trivia categories will include: literature,science & technology, history & geography, arts & entertainment, sports, local legal lore, and obscure legal questions.This year we also have a special category of questions in keeping with our “Auto” themed venue.Deadline to enter team – September 1!Even if you don’t compete in the Trivia Bowl, support The BAR FUND and cheer on your favorite team bysigning up as an individual or purchasing a table of 10! Don’t miss this unique, entertaining and fun-filled event.Co-Sponsored byJAMSCarroll, Burdick & McDonough, LLPCertified Reporting Services • The RecorderTo Register: Call Michele Vasta at 925.370-2548 with your Visa, MasterCard, American Express, or Discovery Card,email her at mvasta@cccba.org, or send your check, payable to CCCBA, to 704 Main Street, Martinez 94553.For further information, or to receive a complete set of Trivia Bowl rules:Contact Lisa Reep at 925.288-2555 or lgreep@cccba.orgSpace limited - Sign up now!1East Bay Community Foundation (EBCF), a tax-exempt 501(C)(3) charitable organization, administers the CCCBA’s “The BAR FUND”.However, ECBF is not coordinating or sponsoring this event. For the purpose of tax-exempt charitable contributions to The BAR FUND,including the team entrance fee, EBCF’s tax identification number is 94-6070996.


Contra Costa LawyerVolume 22, Number 5 • May 2009B A R A S S O C I A T I O Nc o n t e n t sfeatures10 MCLE Self-Studyclient capacity judGMEnts and LEGAL practiceEarn some valuable Ethics MCLE credit while learninghow to assess a prospective elderly client’s “capacity.”Virginia George16 Stopping Medi-Cal eligibility rip-Offsa new tool for protecting eldersThere is no end to the scams targeting seniors, asreported by an attorney who has authored someof our most recent legislative changes.Steven Riess18 Attacking the predatorsUsing class actions to fightfinancial elder abuseA look at some common issues of financial abuse andpredatory lending from the perspective of class actions.Kathryn Schofield20 No (easy) exit When conservatorship andMArital diSSolution procedures collideThe similarity and differences of two cases are examined;one case difficult to commence, while the other difficultto conclude.Andrew Rossdepartments4 InsideArlene Segal6 president's messageLarry E. Cook8 Bench Talk Elder CourtHon. Joyce Cram22 pro bono spotlightVerna Haas and Geoffrey RobinsonCraig Nevin24 ethics CornerCarol M. Langford26 New Members28 Local Civil jury verdictsMatthew P. Guichard30 Classifieds14 Question ManWhat is your opinionabout a mandatoryretirement age?


proofed, spell checked, hyphens, alignmentinside2009 BOARD of DIRECTORSLarry Cook PresidentRon Mullin President-ElectKathy Schofield SecretaryAudrey Gee TreasurerRobin Pearson Ex OfficioChristopher BowenOliver BrayMike BrewerJay ChafetzVirginia GeorgePeter HassLeigh JohnsonKristen Thall PetersRon RivesDana SantosStephen SteinbergCandice StoddardCCCBA EXECUTIVE DIRECTORLisa Reep: 925.288-2555 • lgreep@cccba.orgCCCBA main office: 925.686-6900 • www.cccba.orgJennifer ComagesMembership CoordinatorEmily DaySystems Administrator andFee Arbitration CoordinatorManny GutierrezAdministrative Assistantand Legal InterviewerEDITORCandice Stoddard925.942-5100ASSOCIATE EDITORNancy J. Young925.229-2929BENCH LIAISONHon. Mary Ann O'Malley925.646-4001BOARD LIAISONCandice Stoddard925.942-5100COURT LIAISONKiri Torre925.957-5607ADVERTISING/DESIGNYoung Design & Production925.229-2929PRINTINGExcel Graphics925.552-9998Contra COSTA LawyerPHOTOGRAPHERMoya Fotografx510.847-8523Maria NavarreteLRIS CoordinatorBarbara TillsonModerate Means ProgramCoordinatorMichele VastaSection Liaison / Education& Programs CoordinatorEDITORIAL BOARDKate Bekins925.284-0480Mark Ericsson925.930-6000Matthew P. GuichardLocal Civil Jury Verdicts925.459-8440Nicole Mills925.351-3171Craig Nevin925.930-6016David Pearson925.287-0051Erika Portillo925.459-8440Andy Ross925.296-6000Kathy Schofield925.253-7890Audrey Smith, JFK Liaison925.969-3561Harvey Sohnen925.258-9300Marlene Weinstein925.942-5100The Contra Costa Lawyer (ISSN 1063-4444) is publishedmonthly by the Contra Costa County Bar Association (CCCBA),704 Main Street, Martinez, CA 94553. Annual subscription of $25is included in the membership dues. Second-class postage paidat Martinez, CA. POSTMASTER: send address change to theContra Costa Lawyer, 704 Main Street, Martinez, CA 94553.The Lawyer welcomes and encourages articles and letters fromreaders. Please send them to Nancy J. Young, Associate Editor,Contra Costa Lawyer, P.O. Box 1867, Benicia, CA 94510.The CCCBA reserves the right to edit articles and letterssent in for publication. All editorial material, including editorialcomment, appearing herein represents the views of the respectiveauthors and does not necessarily carry the endorsement ofthe CCCBA or the Board of Directors. Likewise, the publicationof any advertisement is not to be construed as an endorsementof the product or service offered unless it is specifically statedin the ad that there is such approval or endorsement.by Arlene SegalIt looks like elder law has “come of age.” More attorneys are recognizing and workingon elder law cases — much of it pro bono. Legislative changes have increased the toolsavailable to help elderly victims and, since November, Contra Costa County has adedicated Elder Law Court.The demographics driving these changes are compelling. The fastest growing segmentof our county’s population is the 85-and-older group. According to a Contra CostaCounty grand jury report, in the next decade the 85-plus population will grow by 55%,and the 65-and-older segment will grow by 37% (the Contra Costa Times, March 17,2009, page A5).Sadly, the golden years are not all glitter. Also according to the Times, Adult ProtectiveServices reportedly received 3500 reports of elder abuse in the last two years.Many in our aging population will continue to look to our public services, our legalsystem, and our bar for assistance. Hence the need to raise our members’ consciousnessand better prepare our bar to deal with elder law issues: the need for a basic assessmentof an elder’s capacity; the need to protect seniors from scams; the need to sort outfinancial, mental and physical health and welfare issues in the context of civil andcriminal cases — these issues are varied and complex.Our authors this month bring varied backgrounds and considerable knowledge to bearon their subjects. Virginia George, director of the John F. Kennedy University ElderLaw Clinic, alerts us to the need to assess a prospective elderly client’s “capacity.” (Shealso gives us an MCLE opportunity, so don’t forget to take the test and send it in.)Steven Riess, a San Francisco attorney and author of some of our most recent legislativechanges, reminds us that there is no end to the scams targeting seniors. Even seniors withfull capacity fall prey to them, including the Medi-Cal eligibility rip-offs he reports to us.Kathy Schofield, a Walnut Creek attorney, looks at the broader picture. Her articlefocuses on common issues of financial abuse and predatory lending, and does so fromthe perspective of class actions.Elder law issues intersect just about every area of the law, and family law is noexception. Family law attorney Andy Ross walks us through two such cases, examinesthe similarities and differences, alerts us to the problems, and wishes us luck!The Honorable Joyce Cram, presiding in the new Elder Law Court, is now dealing withall of the above and more. Her article helps us understand the how, when, where andwhy of the new court, and welcomes our assistance going forward.I hope you find these articles worthwhile. I appreciate the efforts of all of our contributorsand thank them. I also thank you, our readers, for your interest. u— Arlene Segal is the president of CCCBA’s Elder Law Section. Her litigation and mediationpractice focuses on real property issues, trust/estate disputes, and financial abuse of elders.4 May 2009


LAW DAY FOR LAWYERS IV: How to Keep Your ProfitsUp When the Economy is Down . . .June 5, 2009JFK University School of Law – 100 Ellinwood Way, Pleasant HillProgram Moderator: Jay Chafetz, Law Office of Jay ChafetzEarn up to 6 MCLE Credits at this daylong series of lectures and roundtable discussions, which willfocus on running a profitable law practice, even during an economic downturn.8:00 – 8:30am Registration (coffee, tea &pastries included)8:30-9:30am Getting and KeepingClientsRick Norris, PrincipalArcher ▪ Norris9:40-10:40am Maximizing Profits, Part IGetting Paid – Andy RossWhiting, Fallon, Ross & AbelDealing with Potentially InsolventClients – David Katzen, Katzen &Schuricht10:50-11:50am Maximizing Profits, Part IIProfitability Levers andCalculations – Kristen StarkHildebrant & AssociatesNoon – 12:50pm Information TechnologyComputer Systems and OfficeEquipment – David PearsonLaw Offices of David S. PearsonIncludes Boxed LunchConcurrent Seminars:1:00 – 1:50pm I. How to provide bigemployee benefits, even ifyou are a small firmVic Tanon, EmplicityII. Getting a loan/line of creditfrom a bank and otherbanking issuesRick WiseScott Valley Bank2:00 – 2:50pm III. When to hire your firstemployeeJay ChafetzLaw Office of Jay ChafetzIV. Business plans & strategicplanning, even for the soloRichard FrankelFrankel & Goldware, LLPC O S T :All Day - Members: $75 / Non-members** $175Includes coffee, tea & pastries, lunch & up to 6 HoursMCLE Credit1-hour Sessions –Members: $15 / Non-members: $30Includes 1 hour MCLE Credit per sessionLunch Session –Members: $25 / Non-members: $50Includes 1 hour MCLE Credit and a boxed lunch**Non member attendees may apply the differencebetween the member and non-member rate towardsCCCBA membership.R E G I S T R A T I O N :Return via fax: 925/686-9867, or mail to: CCCBA,704 Main Street, Martinez, CA 94553 (See prices above)Name:Address:Phone:I/we would like to attend: All Day – or – Getting & Keeping Clients Maximizing Profits, Part I Maximizing Profits, Part II Lunch Session – Information TechnologyPlease select I or II: I. How to provide employee benefits . . . II. Getting a loan / line of credit from a bank . . .Please select III. or IV.: III. When to hire your first employee IV. Business plans & strategic planning . . .Payment: $ Check enclosed; Visa; MC; AMEX; Discovery #Exp. Date: SignatureFor further information, contact Lisa Reep at 925/288-2555.MCLE: The CCCBA certifies that these activities have been approvedapproved for for MCLE Credit by by the State Bar of of California (Provider #393).#393).Contra Costa Lawyer 5


president’s messageby Larry E. CookI am delighted to take this opportunityto bring everyone up to speed on some ofour major accomplishments so far thisyear, and to remind all members to keepan eye out for some exciting things thatare in the works.We started off the year by making ourannual Bar Fund grants. Our dedicatedBar Fund committee evaluated grantproposals from several worthy organizations.We were pleased and proud to beable to make the following grants:$10k Bay Area Legal Aid 10k4k CASA5k Deer Valley High School Law Academy5k Senior Legal Services5k JFKU Elder Law Clinic1k The Hawkins Center4k The Law Center$34k TotalIn addition to the $34,000 in directcash grants, the Bar Association will makeits first installment on a two-year $35,000grant to an Equal Justice Works fellowship,which will provide a full time attorney tothe Hawkins Center.We are especially pleased to be involvedon the ground floor of the establishment ofthe Deer Valley High School Law Academy.In response to an unacceptable dropout rateof nearly 30% — and with only 25% ofgraduating seniors eligible to enter college— the Antioch Unified School District hasjoined forces with community groups,including the CCCBA and educationalfoundations, to establish a law academy atDeer Valley High School in Antioch.Starting this fall, the law academy willadmit 100 freshmen to begin a four-yearcourse of study based on the law and manyaspects of law-related careers. For thesefortunate students, legal education willbe embedded into the broad curriculum.Students will emphasize legal studies asthey meet all of the requirements for highschool graduation and for college, university,or vocational school admission.The CCCBA has committed money aswell as attorney and staff time to help thisprogram become a success. To find outhow you can get involved in the effort,contact Lisa Reep at our CCCBA offices.The financial commitment of ourmembership to the above causes at a timewhen the down economy affects us all istruly outstanding. To all of those whosupport the Bar’s charitable giving effort,I extend a heartfelt thank you.With regard to bench/bar relations, Iam extremely happy to report that ourworking relationship with the bench hasnever been better.In February, we held a very successfulGet to Know Your Local Judges reception atCasper, Meadows, Schwartz & Cook. Theevent featured Judges Barbara Hinton, JillFannin, and Barry Goode, and was very wellattended. The next reception will be heldat Carroll Burdick & McDonough on June11, featuring Judges Craddick, Cram, andAustin. Then we wrap up the year with afinal reception for Judge Fenstermacherand Commissioners Green and Huffackeron September 24 at Whiting, Fallon, Ross& Abel. Please come out to meet and greetour fabulous bench officers.LAW OFFICES OFDOUGLAS A. PRUTTONRepresenting employees only in all types oflabor and employment matters, includingwrongful termination and overtime claims.Free consultation, contingency fees,costs advanced, 26 years experience.925.790-2600 • info@amllp.com • www.amllp.com1866 Clayton Road • Suite 211 • Concord(925) 677-5080pruttonlaw@earthlink.net6 May 2009


On March 20, the CCCBA sponsoredour annual State of the Court Address. Arecord-breaking 28 judges (and more than100 people overall) attended the event.Pre siding Judge Mary Ann O’Malley, alongwith other judges who head up the variouscourt divisions, spoke to the membershipabout the day-to-day workings of thecourt, and the ominous challenges presentedby unprecedented cutbacks in statefunding for trial courts.It is plain to see that the very survivalof our justice system depends now morethan ever on creative court management,hard working judges and a cooperativeworking relationship between the courtsand the CCCBA.We have exciting news on the redesignof the CCCBA website. Based on inputfrom our website redesign committee,chaired by board member Steve Steinberg,the project is now out for bid to severalwell-qualified designers. We hope tolaunch the new site by summer’s end, withthe goal of updating its look and feel, andto greatly improve its functionality.Lastly, on the education and professionaldevelopment front, please save thedate of June 5 for our Law Day for Lawyersat JFK University. Under the direction ofCCCBA board member Jay Chafetz andhis dedicated committee, a superb programhas been fashioned to help membersbecome and remain profitable duringhard economic times. For solo practitioners,small and large firm members,this day-long seminar is not to be missed.These are merely some of the highlightsof our Bar activities so far this year. Ourstrong and faithful membership providesfor a healthy organization committed toour members and to our community. u— Larry Cook, CCCBA’s 2009 president, isa partner with Casper Meadows Schwartz &Cook in Walnut Creek. The firm representsplaintiffs in personal injury cases.Elder Law isAlzheimer’sPlanning“A unique and effective style -a great mediator”Please notenew Address- Effective June 1 -Candice StoddardThe average survival rate is eight years after beingdiagnosed with Alzheimer’s — some live as few asthree years after diagnosis, while others live as longas 20. Most people with Alzheimer’s don’t die fromthe disease itself, but from pneumonia, a urinarytract infection or complications from a fall.Until there’s a cure, people with the disease willneed caregiving and legal advice. According to theAlzheimer’s Association, approximately one in tenfamilies has a relative with this disease. Of thefour million people living in the U.S. withAlzheimer’s disease, the majority live at home —often receiving care from family members.If the diagnosis is Alzheimer’s,call elder law attorneyMichael J. YoungEstate Planning, Disability, Medi-Cal,Long-term Care & VA PlanningProtect your loved ones, home and independence.n925.256.0298www.YoungElderLaw.com1931 San Miguel Drive, Suite 220Walnut Creek, California 94596and Mediation CenterRon MullinWillows Office Park p 1355 Willow Way, Suite 110Concord, California 94520Telephone (925) 798-3413 p Facsimile (925) 798-3118Email ronald@mullinlaw.comContra Costa Lawyer 7


proofed, spell checked, hyphens, alignmentbench talkElder Courtby Hon. Joyce CramIn a criminal action, a son is charged withelder financial abuse for obtaining titleto his mother’s home, then borrowingheavily against it. Unable to pay theseloans, the house goes into foreclosure, andthe mother is facing eviction. In a conservatorshiphearing, a daughter requestsconservatorship of her mother, who wasspending her life’s savings on lotteryscams. On the restraining order calendar,a grandmother seeks protection from hergrandson, who has moved into her home,steals her personal property to sell it fordrugs, and threatens her if she complains.These are the types of cases that are heardevery Tuesday in Elder Court, Department22, in the Spinetta Family Law Center.Launched on November 4, 2008 inContra Costa Superior Court, Elder Courthears cases alleging that a senior has beena victim of physical, financial or emotionalabuse. The goal of the court is to ensurethat these types of cases receive comprehensiveattention by assigning them toone judge.Elders can be the victim of physical orpsychological abuse. An elder can beexploited financially, or be physically oremotionally neglected. Perpetrators caninclude care providers such as nursinghomes or residential care facilities, financialadvisors and managers, and even theelder’s own family members. Cases involvingseniors can be more complicated thanother types of cases. The victim may notwant to be involved in litigation againsta person he or she had previously trusted,may not have a clear memory or understandingof what happened, or may betoo frail to withstand the rigors of thecourtroom.The need for a specialized court toaddress the needs of our aging populationwas recognized by the court leadership anda task force headed by Presiding JudgeMary Ann O’Malley was created to developthis program. Our task force partnersincluded the public defender, districtattorney, county administration, andmany community-based organizations,such as the Area Agency on Aging, JFKULaw School Elder Law Clinic, and ContraCosta Senior Legal Services. Despite recentreductions in state funding, the ContraCosta County Superior Court is committedto providing the maximum level ofservice to the public consistent withavailable resources.Since its inception, the goal of the ElderCourt has been to fashion solutions to thecomplex problems a senior citizen faceswhen s/he is involved in the legal system.For example, an elderly victim of financialabuse may not have the resources orresilience that a younger person mighthave to recover from a financial loss. Insuch a case, more important than jail timeis a sentence that includes full and earlyrestitution. A senior victim of domesticviolence may find a shelter unable toaccommodate his or her physical limitations.The solution may be to work withthe community to find alternative, safehousing. Elder Court works with allparties to find a resolution tailored tothe specific needs of the affected senior.Elder Court could not succeed in theseefforts if it weren’t for the assistance of itspartner agencies. The elder may bereferred to mediation through ElderMediation Services. S/he may be referredto the Senior Self Help Clinic for assistance.Senior Peer Counseling has a member incourt at every session. All of these organizationswork collaboratively for thebenefit of the senior. In a recent case, forexample, a woman was seeking an elderabuse restraining order against her son,who had moved her against her will intoan assisted living facility. There wereseveral family members present, and theywere divided over this move. The motherwas adamant she could continue to carefor herself, yet some of the adult childrenfelt she could no longer live alone. Whatwas really needed, as the judge suggested,was a family meeting to determine a planfor the mother’s care. The Peer counselormet with the senior, then with the entirefamily. By the end of the morning, theyhad arranged to go to mediation. Notonly was the senior protected, but an issue8 May 2009


that could have divided a family was onits way to resolution.Seniors face many hurdles as they tryto navigate the legal system. Elder Courthas tried to minimize these. Restrainingorder hearings are calendared at 10:00and evidentiary hearings are set at 10:30.Not only do the victims have sufficienttime to get to court, but they also havethe chance to testify when they are mostalert. A wheelchair is available, as areassisted listening devices. There are alsoemotional barriers that must be overcome.Many who have appeared in Elder Courtare uncertain as to whom they can trust.The court can, in appropriate cases,appoint a guardian ad litem or an attorneyto represent the elder victim. In one case,noting the victim’s unwillingness to testify,the judge asked if he would talk with herif she came off the bench. He agreed, andwillingly testified once he no longer hadto go — alone — to the witness stand.Cases are assigned to Elder Courtfrom many sources. Elder abuse restrainingorder hearings are calendared byCommissioner Judith Sanders and thebranch courts directly to Department 22.Civil cases may be assigned at the firstcase management conference, or earlier,by stipulation. Criminal cases are assignedat the first appearance by the defendant.Conservatorship cases are referred byCommissioner Don Green. Many of thesecases overlap, and Elder Court cases oftenentail a global settlement of these disparateissues.Our Elder Court continues to be a workin progress. Its ultimate form will developfrom feedback from attorneys and thepublic. We hope that those of you whohave cases involving the elderly will makeuse of the resource and help us improve.For additional information or periodicupdates, please check the court’s websiteat http://www.cc-courts.org. u— Judge Joyce Cram was assigned to ElderCourt last November. She has specializedtraining, and is experienced in the dynamicsof elder law issues.Senior Self-Help Clinicby Verna HaasImagine you are a senior in Contra Costa County. You have been sued by a credit card company thatclaims you owe them money. You are convinced that the company has made a mistake and you wantto represent yourself in court. Where would you turn for information and advice? The answer couldbe the new Senior Self-Help Clinic (which opened in March) located in the Peter L. Spinetta FamilyLaw Center in Martinez.The Senior Self-Help Clinic is the first of its kind, dedicated to helping seniors represent themselvesin court. The clinic provides assistance with civil matters, particularly affecting the senior population,including elder abuse temporary restraining orders, landlord-tenant matters, and debtor-creditorcases. Staff at the clinic will be available on a drop-in basis to provide legal infor mation about courtprocedures, to assist with forms and pleadings, and to provide referrals to other legal, consumer andsupport services for seniors. The goal is to provide individual support for seniors so they can betterhelp themselves present their case in court.The Senior Self-Help Clinic is a joint project of the Contra Costa County Superior Court and ContraCosta Senior Legal Services (CCSLS). It is funded in part by a partnership grant from the EqualAccess Fund, administered by the California Bar Association. The court, in its continuing effort toassist self-help litigants, has agreed to provide space and facilities to support this innovative effort.CCSLS will provide the staffing and administration for the clinic.The Senior Self-Help Clinic will be open on a drop-in basis Tuesday mornings from 9am until noon.Those seeking assistance with an elder abuse temporary restraining order are advised to arrive before10am to give adequate time to prepare the documents. Additional information about the clinic, aswell as information on the court’s other services for self-help litigants, can be found on the court’swebsite at www.cc-courts.org.CCSLS is a private, non-profit agency located in Richmond. It has provided over two decades of freelegal services to Contra Costa County residents who are 60 and older, with an emphasis on thosewho have the greatest social and economic need. CCSLS is available to advise and assist clients insuch matters as housing, income maintenance, elder abuse, and consumer matters. Additionally,CCSLS provides a free wills program for simple wills, and sponsors a free legal consultation programat many local senior centers county wide. More information about the organization may be found onits website, www.ccsls.org.Mediation SolutionsSpecializing inTax, Probate, Wills, Trust & BusinessLL.M Taxation • Over 25 years legal experience“AV” rated attorney with mediation trainingExperienced mediator since 1992Nancy A. Gibbons925.280-1990naglawfirm@aol.comContra Costa Lawyer 9


proofed, spell checked, hyphens, alignmentClient Capacity Judgments and Legal Practiceby Virginia GeorgeMCLE SELF-STUDYAlthough attorneys seldomRECEive foRMAL training inclient CAPACity ASSESSMENt,they make capacity judgments on aregular basis. In the context of litigation,capacity may be the sole issue in controversy,such as in a conservatorship case ora challenge to a will, trust or donativetransfer based upon an allegation of legalincapacity. Additionally, in the growingarea of elder law, attorneys are frequentlyin need of assessing a client’s capacity, notjust for representation purposes, but todetermine causes of action, case viabilityand trial strategies.An informal assessment of capacitymust begin with the assumption that theclient has the capacity to make decisionsand engage in legal acts or transactionsregardless of the client’s age, the decisionproposed, or previously diagnosed medicalconditions. This assessment should blendin with the initial consultation. It shouldnot be announced to the client, as such noticemay cause the client to become uncom fortableand may impact the client’s behaviorduring the meeting. During and immediatelyafter consultation, the attorneyshould document any signs of incapacity.These notes may be used to analyze specificsigns under the appropriate capacitystandard, establish a baseline of signs forcomparison in future assessments, and todefend against possible future challengesthat the client did or did not have therequisite capacity to engage in the decision,act, or transaction. If possible, a teamof two persons should perform the informalassessment for both note-takingaccuracy and providing better opportunitiesto observe subtle signs of incapacity.In non-adversarial situations, such asestate planning or the handling of specifictransactions, issues of capacity areconfronted more informally in the dailypractice setting. In this arena, attorneysby necessity make determinations of aclient’s capacity by assessing at least twopoints:First, the lawyer must determinewhether a prospective client has sufficientlegal capacity to enter into a contract forthe lawyer’s services. Failing this, representationcannot proceed. California CivilCode §38 holds that “A person entirelywithout understanding has no power tomake a contract of any kind...” The phrase“entirely without understanding” meansa want of capacity to understand or comprehendcontractual transactions of thetype involved.Second, the lawyer must evaluate theclient’s legal capacity to carry out thespecific legal transactions desired as partof the representation — such as makinga will, buying real estate, executing atrust, and bestowing a gift.Depending upon one’s practice, thepresence of adequate capacity for thetypical adult client is usually fairly obvious.However, with the growing numberof Americans entering their 60s andbeyond, capacity evaluations will be onthe rise in the coming years.The Increasing Prevalenceof Capacity QuestionsDue to the aging demographic bubble,the increase of longevity due to a numberof factors and the greater incidence ofdementia that accompanies the agingprocess, the incidence of cases in whichcapacity is an issue will substantiallyincrease in the future. The term “dementia”implies no specific cause, nor does itrepresent an inevitable part of normalaging. However, the prevalence of dementiais estimated to double every five yearsin the elderly; growing from a disorderthat affects 1 percent of persons age 60and older, to a condition afflictingapproximately 30 to 45 percent of personsage 85 years and older. Alzheimer’s diseaseis the most common affliction affectingthe brain, accounting for 60 to 70 percentof dementia cases. While new drug therapiesare emerging to slow the progress ofAlzheimer’s, the disease continues toremain incurable and irreversible.American Bar Association’s ModelRules of Professional ConductThe ABA’s Model Rules of ProfessionalConduct (MRPC), as revised in 2002,acknowledge a lawyer’s assessment functions,and even suggest a duty to makeinformal capacity judgments in certaincases. For the first time, the revised ruleattempts to give some guidance to lawyersfaced with this particular task. MRPC1.14: Clients with Diminished Capacity,recognizes: first, the goal of maintaininga normal attorney-client relationship;second, the discretion to take protectiveaction in the face of diminished capacity;third, the discretion to reveal confidentialinformation to the extent necessary toprotect the client’s interests.Lawyer Assessment of CapacityWhile California has not yet adopted anyrule or guideline clarifying how an attorneycan make an informal capacity assessment,10 May 2009


California courts and ethics committeeshave turned in the past to the ABA ModelCode on questions about which of theCalifornia rules are “silent or obscure.” Assuch, attorneys may take into account thefactors set forth below when assessing thecapacity of a client:• Ability to articulate reasoning behind thedecision• Variability of state of mind• Ability to appreciate consequences of thedecision• Irreversibility of the decision• Substantive fairness of the decision• Consistency with lifetime commitmentsThese factors appear in the “Comment”section to Rule 1.14 as a general guide.They derive from recommendations of a1993 National Conference on EthicalIssues in Representing Older Clients, andin particular, from an article on representingclients with questionable capacityprepared for the conference by ProfessorPeter S. Margulies.Additionally, a collaborative effortbetween the American Bar Association andthe American Psychological Associationculminated in the publication of a highlyinformative guide entitled “Assessment ofOlder Adults with Diminished Capacity: AHandbook for Lawyers.” The handbookoffers ideas for effective and ethicalpractices for attorneys who are in needof balancing the sometimes-competinginterests between goals of client autonomyand legal protection, particularly whenconfronting the challenging work witholder adults with diminished capacity.Observing Signs of PossibleDiminished CapacityThere is no single indicator that providesa consistent, clear signal that an olderadult is functioning with diminishedcapacity. However, there are markersthat, when considered together, mayreflect diminished capacity. While anysigns should not be taken in and of them- uNursing Home Neglect • Elder AbuseReferral Fees Paid According to State Bar GuidelinesNURSING HOME & ELDER ABUSE LAW CENTER1600 S. Main Street, Suite 185 • Walnut Creek, California 94596The Law Offices of David M. LedermanDavid M. LedermanCertified Family Law SpecialistState Bar Board of Legal SpecializationWalnut Creek: (925) 820-4700Oakland: (510) 839-7777Toll Free: (877) 270-4700www.NoElderAbuse.comTom SmithAssociate AttorneyPracticing exclusively in all aspects of Family Lawin Walnut Creek and Antioch3432 Hillcrest Avenue • Suite 100 • Antioch, California 94531309 Lennon Lane • Suite 102 • Walnut Creek, California 94598Phone 925.522-8889 • Fax 925.522-8877www.ledermanlaw.netContra Costa Lawyer 11


proofed, spell checked, hyphens, alignmentselves to be proof of a lack of capacity,they may indicate a need for furtherevaluation of capacity by an independentprofessional if the signs are present insufficient number and/or severity.In noting potential signs of incapacity,it is critical to keep in mind that the focusis on decisional abilities rather than onclient cooperativeness or affability. It may,at times, be challenging to disentangleone’s reactions to a client’s interpersonalstyle from observations of the client’scognitive, emotional and/or behavioralproblems.Additionally, it is useful to be sensitiveto societal stereotypes about aging (commonlytermed “ageism”). Aging stereotypesmay be positive, idealizing old age;or negative, including the assumptionthat aging and diminished capacity aresynonymous. While such beliefs couldinfluence an accurate appraisal of capacity,awareness of the possible signs of incapacitywill hopefully help the lawyer tobe more objective.During the interview, the attorneyshould be aware of specific cognitive,emotional or behavioral anomalies thatserve as potential “red flags” (which mayindicate possible neurological or psychiatricillnesses) that could diminish a client’scapacity. These signs and their severityshould be documented during and immediatelyafter a client interview. The followingoverview, with illustrative examples,will assist in observing possible signs ofdiminished capacity:Possible CognITIve Signs of Incapacity• Short-term memory loss: Client forgets informationdiscussed in the interview, repeatingthe same statements or asking the same questionmultiple times with no indication that s/he hasdone so more than once.• Communication problems: Client is asked adirect question and has trouble staying on topic,frequently shifting to discussion of unrelatedissues, or moving erratically or nonsensicallybetween topics.• Comprehension problems: Client has difficultyin repeating back or paraphrasing simpleconcepts.• Lack of mental flexibility: Distinguishedfrom being stubborn, a client may lack thecapacity to understand or even acknowledgemultiple alternatives or viewpoints other thanhis/her own, or have difficulty comprehendingand adjusting to changes.• Calculation problems: Client has very basicdifficulties with simple math problems that arefar worse than expected given his/her level ofeducation. For example, someone with a collegedegree who lines up columns of numbers incorrectlywhile adding or subtracting.• Disorientation: Client can become disorientedrelative to space, time or location. For examplea long-time client may have difficulty navi gatingthrough the attorney’s office building spatiallyor get lost driving to the office even if s/he hasbeen there several times over many years. Or,the client may make reference to events fromseveral years ago as if the events were current.Possible Emotional Signs of Incapacity• Significant emotional distress: Client mayappear anxious, tearful, or seem depressed andappear to have no energy and respond veryslowly to questions.• Emotional liability/inappropriateness: Clientmay show an extremely wide range of emotionsduring an interview (such as moving quicklyfrom laughter to tears). Alternatively, clientmay express feelings that appear highlyinconsistent with what s/he is discussing (suchas laughter when discussing death of aspouse or tears of distress while professing tobe happy).Possible Behavioral Signs of Incapacity• Delusions: Client holds beliefs that areunlikely to be true; such as a belief that s/he isbeing spied on by neighbors or the government.This may also manifest more generally inexpressions of feeling frightened or unsafe.However, apparent delusions that seem morereality-based may warrant further exploration;such as concerns about relatives or nursing homefacility staff stealing money or possessions fromthe client, which may be more reality-based.• Hallucinations: Client can have auditory orvisual experiences, such as hearing voices that noone else can hear. An example is an older adultwho seems to be having a conversation withanother person who is not there. May also involveother senses such as smell, touch or taste.• Poor grooming/hygiene: Along with irregularbathing or shaving, for example, a relativelycommon behavior among older adults withdementia is to wear multiple layers of clothing,such as several shirts or pairs of pants.Mitigating FactorsIn addition to noting potential signs ofincapacity, attorneys should be aware ofa number of mitigating factors that mayinfluence observed signs. If found, thesefactors may indicate a need for alternativeaction: such as referral to a physician,adjusting the approach to communication,or waiting until another time when theclient is functioning better. Those factorsinclude:• Stress, grief, depression or recent stressful events• Reversible medical factors• Normal fluctuations in mental ability inolder adults• Hearing and/or vision loss• Individual differences and variability considerationssuch as socio-economic back groundor cultural and ethnic traditionsConclusionIn the coming years, the senior populationwill increase exponentially. Attorneys willneed to be versed in evaluating theirclients’ capacities both initially and potentiallythroughout the course of theirrepresentation. Awareness of how togenerally assess capacity and the needto do so will result in improved representationas well as increased sensitivityto this important and respected segmentof our population. u— Virginia M. George,supervising attorney anddirector of the John F.Kennedy UniversityElder Law Clinic, is alsoa board member of theContra Costa CountyBar Association.12 May 2009


Ethics MCLE TestMay 2009 Contra Costa LawyerMCLE Self-Study1. In litigation, the issue of client capacitymay be the sole matter in controversy.T or F2. The concept of “ageism” refers only tonegative stereotypes about aging. T or F3. The assessment of capacity must beginwith the assumption that the client hasthe capacity to make decisions and engagein legal acts, regardless of the client’s age.T or F4. The attorney should document anysigns of potential client incapacity bothduring and immediately after the clientinterview. T or F5. It is advisable for a team of two persons,including the attorney, to do the initialclient capacity assessment. T or F6. California Civil Code §38 holds that“A person entirely without understandinghas no power to make a contract of anykind...” T or F7. The prevalence of dementia in theelderly population appears to be on thedecline. T or F8. In 2002, the ABA’s Model Rules ofProfessional Conduct were revised toacknowl edge a lawyer’s assessment functionsand suggested a duty to make informalcapacity judgements in certain cases.T or F9. According to the ABA Model Code,one factor attorneys may consider whenassessing the capacity of a client is theclient’s ability to appreciate the consequencesof his or her decision. T or F10. A recent collaboration between theAmerican Bar Association and theAmerican Psychological Associationresulted in the publication of a guideentitled “Assessment of Older Adults withDiminished Capacity: A Handbook forLawyers.” T or F11. Only one indicator exists that providesa clear signal that an older adult is functioningwith diminished capacity. T or F12. When assessing a client’s capacity,attorneys must take care to focus ondecisional abilities rather than on clientcooperativeness or affability. T or F13. Possible cognitive signs of incapacityinclude short-term memory loss anddisorientation. T or F14. A client who appears anxious or tearfulmay be exhibiting signs of significantemotional distress. T or F15. Possible behavioral signs of inca -pacity could include poor grooming orhygiene. T or F16. Delusions that are more reality-basedwarrant further exploration, such as theclient’s concerns about relatives stealinghis/her money or possessions. T or F17. If mitigating factors are presentduring the interview, one alternativewould be to postpone the interview untilthe client is functioning better. T or F18. Stress and grief play no role inassessing a client’s capacity or lackthereof. T or F19. If the signs of potential client incapacityare present in sufficient numberand/or severity, they may indicate a needfor further evaluation of capacity by anindependent professional. T or F20. Depending upon an attorney’s contactand nature of representation of a client,capacity assessment may be an ongoingconcern as the client ages. T or FContra Costa Lawyer 13NameLaw FirmAddressCity & ZipTelephoneState Bar #1. True False2. True False3. True False4. True False5. True False6. True False7. True False8. True False9. True False10. True False11. True False12. True False13. True False14. True False15. True False16. True False17. True False18. True False19. True False20. True FalseMail this completed form and the $20 testingfee (checks made pay able to CCCBA) to:Michele Vasta, CCCBA, 704 Main Street,Martinez, CA 94553.The Contra Costa County Bar Association certifiesthat this activity has been approved for one hourof Ethics MCLE credit by the State Bar of California(Provider #393).^


proofed, spell checked, hyphens, alignmentQuestion manWhat is your opinion abouta mandatory retirement age?In my opinion, there shouldnot be a mandatory retirementage. Instead, retirementshould be based on an individual’schoice depending onhis / her health and mentalabilities — which today are ageless.Jessica A. BravermanBraverman Mediation & ConsultingThose who have the mental and physicalability to work — and want to work —should be allowed to. The governmentshould not dictate mandatory retirementages. Of course that leaves open the question,“Does the individual have the mentaland physical ability to perform the jobto expectations?” Overall, less governmentis better government.Charles F. Schreiber, Jr., CPAAffiliate MemberGiven the poor economy, fewer peoplewill be able to retire, and a mandatoryretirement age may turn out to be aluxury we cannot afford.D. Alexander FloumThe Williams FirmArtificial barriers to anyonebeing productive in our society(like age, gender, race, religion,sexual preference) are examplesof bias and prejudice. Anyonewho feels that they are competentshould be allowed to compete.Let the best person win.Anthony AsheLaw Office of Anthony Guy AsheBad idea. Chesley Sullenberger shows thatairline pilots, like lawyers, only improvewith time.Joseph NykodymRyan & LifterIt depends on the definitionof “retirement” and who orwhat is mandating it.Jim ArnoldThe Arnold Law PracticeI think mandatory retirement age rules(like most rules based solely on the existenceof one immutable characteristic) arediscriminatory and ridiculous. ConsiderArthur Winston, leader of 11 employeesin the Los Angeles County MetropolitanTransportation Authority, who retired onhis 100 th birthday (and died one monthlater). Consider Warren Buffet, age 79,Chairman & CEO of Berkshire Hathaway.Chester Reed, 93, was the oldest postalemployee still working in the nation in2007. And last, but not least, my grandmother,Marian — at 86, a file clerk at abusy industrial medical clinic. All of theseindividuals have impressive attendancerecords, only missing work a handful oftimes in their entire lives. Of courseindividual employees often have to leaveor be terminated for a range of reasons.But age is a characteristic that oftenenriches rather than undermines performance.If it must be considered at all, itshould be respected as an asset, not prejudgedas a liability.Heather Holbrooks-KuratekLaw Offices of John F. MartinI think it is an inappropriatelyeasy way to make an otherwisetough decision about an individual’sslipping performance.I believe that we each shouldbe judged on our performance— not on the number of miles we haveon our odometer.Michael Patrick DurkeeSolo, Walnut CreekThe boomers cannot afford to retire now,if they ever could. Generations X and Ywant the boomers — who have alreadysaddled them with a huge legacy of debt— to get out of the way so they canadvance. Some businesses may not be ableto find everyone they need to replaceboomers in certain jobs. This is a majorproblem already manifesting itself, and itwill get worse.John BarnardLaw Offices of John BarnardThe best person to answerthis question is Judge RichardArnason, who is still workingenergetically in his 80s. I hopeI can — but I hope I do notneed to.Pieter WilliamsLaw Offices of Pieter K. WilliamsOur firm is committed to amandatory retirement age. TheNevin, Ramos & Steele partnershipagreement requiresretirement at age 97.Alan RamosNevin, Ramos & Steele14 May 2009


If we are talking about attorneys,I know some excellent attorneyswho are well past medicare age.If we are talking about otherprofessions, probably Sullywould be gone before long. Ithink it is an individual matter, whetheror not the person could still do the joband still wanted to. If it were mandatory,who is going to decide on that age? Hopefullynot someone under 30.Dorothy HensonHenson & HensonBeing forced to retire at a certainage would have harsh qualityof life effects on a lot of olderpeople who are still quitecapable of contributing tosociety. Working, especially ina job one enjoys, gives many people apurpose for living. Directly addressingcapacity issues, perhaps through mandatoryphysicals each year after a certainage, might be a better idea.Dess BenedettoFamily Trust Law CenterPoppycock and Balderdash!When a person is ready to quit,he or she knows it… not you.But for judges, it is different.We need to make room formore younger judges and thatmight not occur without mandatoryretirement. But judges really don’t retireanyway — they go to JAMS or ADR orpro tem. So mandatory retirement is goodfor judges and other jobs where you canbe hired back under a different title to dothe same type of things.Wayne V. R. SmithAttorney and MediatorWhat? And lose all that experienceand (so-called) wisdom?Tom CainSolo, Walnut CreekI think it is an outdated, stereotypicalconcept which does notcorrespond to the real world. AsAARP says, “60 is the new 30.” Ithink “65 is the new 35.” There areall kinds of economic and social factorsdriving people to want to work later inlife and I do not believe the argumentsfor preventing them from doing so arepersuasive. People are getting marriedlater in life, having children later in lifeand may have several marriages. Thedemographic dominance of the babyboomergeneration, coupled with medicaladvances and healthy lifestyles, means somany seniors remain important assets totheir employers. Instead of a mandatoryretirement age, I would advocate incentivesto encourage employers to createflexible jobs to adapt to the real worldneeds of the workforce today: e.g., parents,seniors, those with health issues, thoseresponsible for taking care of their elderparents and those wanting some timeto “smell the roses.”Marjorie WallaceNancy Balles, APLCI like the Benjamin Button concept:Retire at 21 for 10 years while you canreally enjoy it. Then work until you diewith your boots on.David L. RothReal Estate Law Offices of David L. RothI think most people today feelincreasingly enthusiastictowards working as long asthey can — for monetaryreasons, for health and socialconsiderations, even forpurely personal reasons. Employers alsowant to retain their most valuable, experiencedand talented people a lot morethan even a decade ago. By contrast, inIndia the cutoff is at 58, so by 2010, onefifthof the workforce is out of work.Marc BouretBouret ADR & Mediation FirmDon’t do it! I have a six and aseven year old. I don’t think theycan hold down full time jobs yet.But I can ask them if you insist.Matt GuichardGuichard, Teng & PortelloI believe I am the perfectexample of why there shouldnot be a mandatory retirementage. I am 75-plus yearsold. I practiced law for 50years straight, retiring fromthe “active” practice of law at theend of 2007. After six months, I was boredand am now the foreperson of the SanFrancisco Civil Grand Jury. I will be lookingfor another position at the end of myone-year term. If you have your health,just stay active, travel and keep going.Leonard A. KullyNo longer bored in San FranciscoWith age comes wisdom… Justask Maurice (Moyal) or Seymour(Rose).Merritt WeisingerWalnut Creek Family Law CenterI do not think there should be a mandatoryretirement age. Retirement shouldbe based upon an individual’s performancein a specific occupation and the requiredduties and not chronological age. Unfortunately,as we age, some of our sensesmay deteriorate as well as some of ourphysical abilities. If a person is able toadequately function in his or her occupationboth physically and mentallywithout causing injury to anyone, I donot see why a mandatory age for retirementis indicated, especially with thecurrent economic climate.Patricia TimmGalloway, Lucchese, Everson & PicchiAm I there yet?David A. BrownLaw Office of David A. BrownContra Costa Lawyer 15


proofed, spell checked, hyphens, alignmentStopping Medi-CalEligibility Rip-Offs:A new tool forprotecting eldersby Steven RiessUnderstanding MEDI-Cal ELIGIBILITYis daunting, regardless of one’s sophistication,competence, or professional experience.For the elder — who is physically ormentally infirm and who may be anxiousabout institutionalization or other end-oflifeissues — it can be an impossibility. Foryears, predators have exploited this combinationof ignorance and fear by selling eldersso-called Medi-Cal eligibility planningservices at exorbitant prices. These plansoften “guarantee” eligibility although, inmost instances, such guarantees are merelyempty promises. Regardless of their circumstances,plans are aggressively pitched to:elders who are in good health and who maynever need services covered by Medi-Cal;elders who are nearly impoverished and whowould qualify for benefits merely by applying;couples with assets well within thecommu nity spouse resource allowance; elders whohave sufficient assets to pay for anticipatedneeds; some people in their 50s and in goodhealth. In other words, these plans are soldto any one who will buy them.Prices charged for these plans varyconsiderably, from a low of about $10,000to a reported high of $65,000; most are inthe $15,000 to $25,000 range. The actualprice seems to depend largely on what theelder is able or willing to pay. Thus,although the services offered are typicallythe same, the price charged may be$15,000, $17,500, $19,995, $21,995, or$23,500. In many instances, if the eldershows resistance, the sales representativewill “call the supervisor and get permissionto reduce the price for that day only.” Inone instance, the elder told the sales representativethat her funds were invested ina certificate of deposit subject to a penaltyfor early withdrawal. The sales representativereceived “permission” to reduce theprice by the amount of the penalty if theelder would immediately agree to the plan.If the elder does not have sufficient funds,s/he is often encouraged to borrow themoney from relatives.The services provided to purchasers ofsuch plans typically follow a pattern. Afterthe check is cashed, the “account representative”visits the elder’s home with aportable photocopier, and copies all of theelder’s financial and estate planning records.Thereafter, a crude accounting is created.Regardless of whether the elder has anexisting estate plan, s/he is usually referredto an “associated” attorney for creation orrevision of estate planning documents. Thefee already paid does not cover such legalservices, and the elder typically pays anadditional fee of between $1,500 and$3,000. Although the elder may have avariety of health issues and concerns, placementat a skilled nursing facility is typicallynot imminent. Accordingly, if the elderwould then qualify for Medi-Cal, nothingfurther is done. If the elder later needsMedi-Cal covered services, the service mayor may not assist the elder in completingan application. If the elder has assets, theservice typically advises gifting. At thispoint, many elders balk at the advice toimpoverish themselves so that they mightsomeday become eligible for benefits. Inone instance, a couple in their mid 60s, ingood health and with an estate in excess of$3 million, were advised to gift all of theirassets to relatives. At this point, many eldersrealize that they have been cheated.Few attorneys have been willing to representelders exploited by such pred ators,primarily because the amounts involvedare relatively small, and proving fraud orsimilar causes of action can be difficult.During 2008, the Legislature addressedthis problem in Senate Bill 1136 (ElaineAlquist — Santa Clara County). This bill— which passed both the Senate andAssembly unanimously and was signed bythe Governor on September 28, 2008 —revises the Consumers Legal Remedies Act(CLRA) [Civil Code §§1770 et seq.]. TheCLRA protects consumers from 23 enumeratedunfair or deceptive acts or practices.A plaintiff who proves conduct in violationof the CLRA may recover actual damages,an injunction against continuing violations,restitution of property, punitive damages,16 May 2009


easonable attorney fees, and costs. SenateBill 1136 supplements this list of deceptivepractices with a new prohibition: chargingor receiving an unreasonable fee to prepare,aid, or advise any prospective applicant forpublic social service benefits. The statutedefines an unreasonable fee as an amountthat is “exorbitant and disproportionate tothe services performed.” In determiningthe reasonableness of the fee, the court isto consider factors such as: the time andeffort required; the novelty and difficultyof the services; the skill required to performthe services; the nature and length of theprofessional relationship; the experience,reputation, and ability of the person providingthe services; and any other relevantcircumstance. A plaintiff who proves aviolation of this new prohibition is entitledto all of the CLRA’s existing remedies:damages, injunctive relief, restitution,punitive damages, attorney fees, and costs.In addition, the court is required to awardthe plaintiff treble actual damages.The practical effect of this new provisionis clear: any person (an elder or ayounger) who is exploited by a Medi-Caleligibility planning service need onlyprove that the fee charged was unreasonableand dis proportionate to the servicesprovided. Proving that the fee is unreasonableresults in a mandatory award oftreble actual damages and attorney fees.This new remedy significantly alters theeconomics of these predatory practicesfor both the elder and the predator; a$25,000 service fee will result in an awardof $75,000 plus reasonable attorney fees.For rip-offs occurring this year (the newlaw went into effect January 1, 2009),the elder should have considerably moresuccess in finding an attorney who willtake the case; for the predator, the costof doing business suddenly went up. uRoger F. Allen510.832-7770Ericksen, Arbuthnot, Kilduff,Day & Lindstrom, Inc.155 Grand Avenue, Suite 1050Oakland, CA 94612rallen@eakdl.comStandards • Strategies • Strength • SolutionsWELL PREPAREDto handle your complex business transactionsDoug Maggi, SVP925.944.0180 ext. 209Bob Kouba, VP925.944.0180 ext. 212Northern CaliforniaMediator / ArbitratorColleen Benatar, VP925.944.0180 ext. 21511 years as Mediator20 years as Arbitrator28 years in Civil Practice• Training includes Mediation Course atPepperdine University 1995• Serving on Kaiser Medical MalpracticeNeutral Arbitrators Panel• Settlement Commissioner, Alameda andContra Costa Counties• Pro Tem Judge, Small Claims,Alameda County• Experienced in all areas of Tort Litigation,including injury, property damage, fire loss,malpractice, construction defectRick Wise, EVP925.944.0180 ext. 216California’s OldestIndependent Bankwww.scottvalleybank.comWALNUT CREEK 1500 N. California Blvd. • 925.944.0180Oakland , 1111 Broadway, 510.625.7850 • Santa Clara • 5201 Great America Pkwy., 408.653.1200— Steven Riess is a San Francisco attorneyspecializing in elder financial abuse. In 2007,he wrote Senate Bill 611 (authorizing attachmentin elder financial abuse); in 2008, hewrote Senate Bill 1140 (expanding financialabuse laws) and Senate Bill 1136 (revising theConsumers’ Legal Remedies Act to prohibit thesale of exorbitantly priced Medi-Cal eligibilityplanning to seniors).Take advantage of one of the manyCCCBA membership benefits!To schedule an appointment witha CCCBA notary, please callBarbara Tillson, (925) 370-2544704 Main Street • MartinezFree Notary ServicesContra Costa Lawyer 17


Attacking the predatorsUsing Class Actions toFight Financial Elder Abuseby Kathryn SchofieldMr. Smith, a 70-year-old retiree,purchased a deferred annuity from anAnnuities R Us sales representative whocame to his house. His new annuity willmature in 30 years, if Mr. Smith is luckyenough to reach the age of 100. Mr. Smithwill incur substantial penalties if he withdrawsany of the funds early.Annuities R Us markets its annuitiesalmost exclusively to seniors. Its representativesare carefully trained and controlledby corporate headquarters. The representatives’sales materials are all carefullycrafted and supplied by headquarters. Therepresentatives are on commission, andreceive bonuses for selling the type ofdeferred annuity Mr. Smith purchased,whether or not it is an appropriate financialvehicle for a senior.The picture of financial elder abusepeople envision is that of the ungratefuladult child, siphoning money from theunwitting parent. However, an entirelydifferent subset of elder abuse exists wherebusinesses set out to profit from the elderly’sparticular vulnerabilities. This country’swealth is concentrated in the elderly: over70% of American’s net worth is held bythose 50 and older. 1 Much of that networth is held in seniors’ homes. Seniorsare often isolated, anxious about theirfinances, and financially unsophisti cated.It is no wonder they are a tantalizingtarget for the unscrupulous.Historically, institutional financialelder abuse — like the annuity sale above,reverse mortgages, Medi-Cal scams, etc.— have been challenging to pursue in acourt of law. Often the senior does notknow or admit that something bad hashappened; it is estimated that only 1 in100 financial elder abuse claims are everreported. The money taken from seniorsis often too small of an amount to justifyan individual legal action. Litigation cantake so long, and the stress generated sointense, that the senior could die befores/he would ever see the fruits of theattorney’s labor. Financial predators knowthese challenges prevent people frompursuing claims against them, and are alltoo willing to exploit the legal system’slimitations to their advantage. Fortunately,tools are available that make it possibleto pursue these predators. In particular,combined with new changes in the financialelder abuse statutes, the class actionis becoming a very powerful tool in thefight against financial elder abuse.Financial elder abuse class actions arean emerging area of law, with very fewpublished cases on the books. However,there are currently dozens of such classactions winding their way through thecourts. They include allegations of theselling of inappropriate annuities like thatdescribed above, and other abusive schemesranging from reverse mortgages, predatorylending, exorbitantly priced Medi-Calplanning services, trust mills, and theunauthorized practice of law. The newamendments of the Elder Abuse andDependent Adult Civil Protection Act(“EADACPA”) and the Consumer LegalRemedies Act (“CLRA”), operative as ofJanuary 1, 2009, are particularly useful inthe class action context. Individual issuesraised by class members’ specific circumstancescan often derail a case; the revisionsallow for stronger arguments that classtreatment of these claims is appropriateand, in fact, superior to the alternatives.Financial elder abuse occurs when aperson or entity “takes, secretes, appropriates,obtains, or retains real or personalproperty of an elder or dependent adultfor a wrongful use or with intent to defraud,or both.” [Cal. Welf. & Inst. Code§15610.30(a)(1).] Financial elder abusealso occurs when someone assists in any ofthe above, or does any of the above throughundue influence. [§15610.30(a)(2)-(3).]“Wrongful use” is defined as when the“person or entity knew or should haveknown that this conduct is likely to beharmful to the elder or dependent adult.”[§15610.30(b).] “Intent to defraud” isdifferent from fraud in an important way;each victim does not have to show that s/hereasonably relied on misrepresentationsmade by the defendant. This definitionallows a plaintiff class to argue more effectivelythat common issues predominate.For example, in the hypothetical above,one predominant common issue underthe new definition of financial elder abuseis whether Annuities R Us should haveknown that such deferred annuities wereharmful to seniors, just by virtue of theseniors’ ages and the maturity dates of theannuities. In contrast, whether Mr. Smithreasonably relied on any misrepresentationsmade by Annuities R Us when hepurchased the annuity is not likely to bean element of the elder abuse claim at all.There is no published opinion yet on thiscommonality issue, but based on the newlanguage, it is a strong new argument tomake at class certification. As a result ofthis new statutory language, attorneysmay now pursue class claims againstpredators who otherwise face no seriousthreat to their ongoing business plans.Similarly, the CLRA has been amendedto include a new tool in the fight againstelder abuse. The CLRA now prohibits18 May 2009


“charging or receiving an unreasonablefee to prepare, aid, or advise any prospectiveapplicant, applicant, or recipient inthe procurement, maintenance, or securingof public social services.” [Civ. Code§1770(a)(24)(A).] “Unreasonable fee” isdefined as “a fee that is exorbitant anddisproportionate to the services performed”based on several enumeratedfactors. [Civ. Code §1770(a)(24)(B)(ii).]Like the definition of financial elder abuse,this definition lends itself to common issuesof fact and may be appropriate for classtreatment. Determination of whether afee is reasonable does not require an inquiryinto each senior’s situation, especially whenthe defendant charges a flat rate.Add these statutory changes to theexisting framework of elder abuse statutorypenalties and damages, and the power ofthe elder abuse statutes are apparent. Thestatutory penalties in financial elder abuseand CLRA cases are substantial, includingattorney fees [Welf. & Inst. Code §15657.5(a)] treble damages [Civ. Code §3345]and punitive damages [Civ. Code. §1780(CLRA attorneys fees, punitive damagesand penalties provisions)]. Combined withthe new standards for elder abuse, thesedamages are a powerful tool to bothcombat and deter predatory behavior.There isn’t enough space here to gointo the intricacies of what makes a casesuitable for a financial elder abuse classaction. There are pragmatic issues likewhether the defendant is solvent. Thereare complex legal issues like federal preemption.Suffice it to say, when the rightfacts present themselves, a class actionoffers a unique opportunity to effectpositive change, protect a population thatsorely needs protecting, and to actuallyget paid for doing a public good. u— Kathryn Schofield, who practices elder lawin Walnut Creek, can be reached at kathy@schofieldlawgroup.com.Effective Neutrals At Competitive Rates!Hon.AlfredChiantelli(Ret.)Hon.M.O.Sabraw(Ret.)Walnut Creek 925.210.8984Oakland 510.251.3808San Francisco 415.249.0348Sacramento 916.648.2672www.mechanicsbank.comMEMBER FDICHon.RichardFlier(Ret.)Hon.DouglasSwager(Ret.)Dorene Kanoh, VP50 Fremont St., Ste. 2110San Francisco, CA 94105Hon.StephenFoland, Comm.(Ret.)Hon.JamesTrembath(Ret.)Hon.RichardHodge(Ret.)MichaelCarbone,Esq.Business Escrow Services atMechanics Bank.Mechanics Bank Business Escrow ServicesDepartment offers a wide range of escrowservices for attorneys. We are the experienced,neutral third party you need to manage yourclient’s business transactions in accordancewith the terms of the escrow agreement. Callus today to learn how we can help you with:• Stock Transfers and Merger Acquisitions• Subscription Offerings• Professional Practice Sales• Holding Escrows• Bulk SalesHon.JoanneParrilli(Ret.)EricIvary,Esq.• Depository for 1031 Exchanges• Contractor Retention/Construction Contract• Controlled Disbursement AccountsHon.BonnieSabraw(Ret.)MichaelMcCabe,Esq.tel 415.772.0900fax 415.772.0960www.adrservices.org1All of the statistics in this article were cited in: BettyMalks, M.S.W., CSW, Santa Clara County, Director ofAging and Adult Services, Social Services Agency, 2006Senior Summit, May 12, 2006 (http://www.seniorsummit.ca.gov/materials/betty_malks.pdf).BusinessBankingCorporateBankingWealthManagementPersonalBankingMEC 2719 Contra Costa Lawyer Mag 4.6875x4.5625_v4.indd 17/31/08 7:01:04 PMContra Costa Lawyer 19


^EasyWhen Conservatorship andMarital Dissolution Procedures Collideby Andrew RossAs medical science and technology prolong lives — and in some cases resuscitate individuals after a debilitating medical event such as astroke — it is more likely that a person will become involved in concurrent marital dissolution and conservatorship proceedings. In tworecent cases, a spouse was brought to probate court for conservatorship proceedings and concurrently (or shortly after) was required to initiateor respond to a marriage dissolution petition filed in the family court. Each case presented unique problems, both legal and practical. Bothof the marriage disso lution proceedings were in Contra Costa County, although they were in different family law departments. One of theconservatorship proceedings was venued in Alameda County; the other in a court in Southern California. The judicial philosophy of theprobate court judges heavily influenced the outcome of both cases. One case was difficult to commence; the other was difficult to conclude.Conservatorship-DissolutionFacts PatternsIf you have not seen a case of this type,you will: A 60-something year old, oncedivorced, well-heeled fellow married ayounger woman whose financial situationis not as comfortable or established as his.There is no pre-marital agreement. Hehas adult children from his first marriage.Shortly after a round-the-world trip, theyacquire a multi-million dollar home injoint tenancy. He makes a $1 million-plusdown payment on the property. Not longafter the purchase, he suffers a significantstroke and is substantially incapacitated.His children and siblings take an interestin his health care and his property.In this first case, the gentleman’s newwife began to quarrel with his siblingsand children about care and maintenance— and the management and dispositionof his property. The wife filed a conservatorshipproceeding. Legal counsel wascontacted by one of the gentleman’ssiblings. Should the new wife be herhusband’s conservator, and is undue influencebeing exercised by the new wife onher husband?There were two matters of immediateconcern. First, federal law requires that thenew wife must be the beneficiary of herhusband’s 401(k) plan. The balance in thataccount exceeded $2 million. Second, thehouse was held in joint tenancy. If theprospective conservatee died prior to thecommencement of a marriage dissolutionproceeding in which his appointed authorizedagent could terminate the jointtenancy and establish his separate propertycontribution, the house would devolve tohis spouse by right of survivorship. If hedied before a judgment terminating theparties’ marital status was entered, his401(k) would pass to her as well.The probate court was urged to authorizethe filing of the dissolution proceedingon behalf of the conservatee, to protectthe conservatee’s property and avoid dissipationof his estate. The probate judgewas clearly more interested in protectingthe health and well being of the conservateethan in the ultimate disposition ofhis property. It indicated that the propertyissues were of no particular concern to thecourt; it wanted to ensure the conservatee’shealth, safety and comfort.How Does the Dissolution Case Begin?The leading cases in this area are In ReMarriage of Higgason (1973) 10 Cal.3d476, disapproved on other grounds; In ReMarriage of Dawley (1976) 17 Cal.3d 342;and In Re Marriage of Caballero (1994) 27Cal.App.4 th 1139. In Caballero, an incapacitatedspouse had an institutional conservatorto manage her financial affairs. Herson from a prior marriage attempted toinitiate a legal separation proceeding inthe family court on her behalf. He filed apetition to be appointed her guardian adlitem in the to-be-filed marriage dissolutionproceeding. The family court grantedthe husband’s motion to quash the serviceof the summons and dismissed the action.The Court of Appeal held that the wife’s20 May 2009


son, who was her attorney-in-fact and hernominee as conservator, established hisentitlement to be appointed guardian adlitem and to seek that designation in thefamily court for the purpose of filing alegal separation proceeding.Anyone who has the conservatee/dissolution case should read Caballerocarefully. Starting at page 1152 of itsdecision, the Court of Appeal enumeratedmany of the remedies available to a conservateein a dissolution proceeding thatwould otherwise not be available to herin a conservatorship proceeding. Someremedies available to the incapacitatedspouse are:• Immediate temporary support consistent withparties’ marital standard of living and theavoidance of a situation where the incapacitatedspouse is required to support herself/himself outof separate property.• The potential to recover legal fees and costs.• The jurisdiction and power to issue restrainingorders to preclude conduct contrary to herrights (now embodied in the standard familylaw restraining orders).• An accounting of assets and obligationsincident to marriage and the ability to requirecooperation and complete disclosure within arelatively short period of time.It was important to file the petition inthe family court, after which the first stepstaken would be to terminate the jointtenancy and perfect the incapacitatedhusband’s separate property interest in thefamily residence, and terminate maritalstatus for the purpose of ensuring theincapacitated spouse could lawfully redesignatea beneficiary of his 401(k). Underthe Caballero guidelines, an Order to ShowCause was filed in the family court, requestingthat one of the siblings of the proposedconservatee be appointed as his guardianad litem and be given permission to filesuit for legal separation. 1This caused difficulty in the familycourt: under standard rules, all petitionsare required to be “filed.” The petition wasnot held, as counsel had requested, fordelivery to the judge for the purpose ofhis conducting a hearing on whether aguardian ad litem should be appointedand the petition for legal separation filed.The petition was filed before the guardianad litem was appointed. On the wife’smotion to strike the petition on thegrounds that the guardian ad litem hadnot been appointed, the court issued atentative ruling that indicated it wouldgrant the motion to strike; and thereafterthe hearing was put over at the parties’joint request so a property agreementcould be negotiated.How Does the Dissolution Case End?A complete property agreement wasquickly reached. Wife was represented byan experienced family law practitionerwho understood that it was inevitable andin the best interests of all parties to resolvethe case on the best terms that could benegotiated under the circumstances.Given the husband’s condition, the partiescould no longer live as man and wife.Once the terms of the formal agreementwere put together, the legal separationproceeding was converted to a dissolutionproceeding, the family court entered ajudgment into which the terms of theparties’ agreement were incorporated, andthe marriage was terminated. The probatecourt played no role in the approval ofthe terms of the judgment that dividedthe parties’ property. The husband’s heirsat law were fully apprised of the termsand conditions of the settlement andapproved them in advance.The facts and circumstances of the othercase were different. The husband residedin, and was being treated at, a SouthernCalifornia facility. The facility was the bestin the state to provide continuing 24-hourcare to him, which he needed by reasonof the effects of his stroke. Unlike the firstcase, the parties had been married for along time, approximately 20 years at thetime of the debilitating event. Theyremained married for a period of aboutnine years thereafter. At that time, theconservatee’s brothers took an interest inwhat they perceived to be his wealth andattempted to cut off his spouse from thefinancial benefits that derived from generousdisability payments he was receivingfrom policies that had been acquiredduring the marriage. This precipitatedthe wife’s filing a marriage dissolutionpro ceeding. A valuable home and 401(k)were also the major assets in this marriage.A global settlement ultimately wasreached with guidance from a proactiveSouthern California probate court.In the latter case, the conservator alsoacted as the guardian ad litem for theconservatee/respondent in the marriagedissolution proceeding. The probate courtprodded him into settlement negotiationswith the wife; then it conducted hearingson the terms of the settlement proposals,which were being exchanged between theparties to the family court proceedings.In the end, the probate court required allof the interested parties in the probateproceeding to authorize and approve theterms of the settlement in a formal stipulationand order. The probate court judgerequired that he sign the Judgment ofDissolution on its face, indicating hisapproval of the document, after which itwas approved by Contra Costa County’sfamily court judge.In the latter case, the settlement processtook four months to conclude afterthe deal was struck. In the first case, thetransaction was closed in four days afterthe deal was made.ConclusionThere is little science to this practice.Similar cases have different stories, differentendings. Know your judge. Knowyour local rules. Wage your battle in theproper arena. Be prepared. Work hard.Hope for a little luck. u— Andy Ross, managingpartner of Whiting, Fallon,Ross & Abel, is a certifiedfamily law specialist whosefamily law practice is locatedin Walnut Creek.1CCP §372 requires an incompetent person, includinga conservatee, to appear through a guardian ad litemappointed by the court in which the action is pending orby his conservator. A guardian ad litem may be appointedupon application of a “friend” or a relative, CCP §373.Contra Costa Lawyer 21


Pro BonoSpotlightby Craig NevinVerna HaasandGeoffrey RobinsonWe have two silent heroes in our midst:Verna Haas and Geoffrey Robinson. Ourreaders are likely to know Geoff as one ofthe county’s eminent attorneys, whosepractice focuses on land use, development,and real estate litigation. Geoff, a longstanding(and now managing) partner ofBingham McCutchen, has been with thefirm for 22 years.Verna may be less well known, as shetook a hiatus to raise three girls beforereturning to the practice of law. She currentlyworks as a staff attorney withContra Costa Senior Legal Services; sheformerly worked as an assistant districtattorney in Sacramento, and then later inprivate practice doing primarily businesslitigation.Those who are well acquainted withGeoff and Verna know they are married— to each other — have three daughters,several dogs and cats, five chickens, androughly 20,000 bees — and are both avidbridge players. Both are also active membersof the CCCBA and share an importantand sincere dedication to worthy causes.Over the past 18 years, Geoff has beena board member of Contra Costa SeniorLegal Services (CCSLS). He, like manyothers at Bingham McCutchen (includingSandy Skaggs and current board presidentCamarin Madigan), has made a profounddifference in the lives of countless seniors.With his support, guidance and direction,CCSLS has fulfilled its mission to providefree legal services for seniors who could nototherwise afford any representation at all.This ongoing work (amazing in and ofitself) is only a part of Geoff’s larger commitment:he has also been an active participantin his firm’s pro bono program,representing individuals, non-profits andpublic agencies before state and federalcourts, including several matters in theCalifornia Supreme Court. Former co-chairof the California Commission on Access toJustice and current board member of thePublic Interest Clearinghouse, he is therecipient of the firm’s first John J. CurtinPublic Service Award and the CaliforniaState Bar’s President’s Pro Bono Award.While at home, Verna was involved innumerous school and community-basedvolunteer activities, including leading agirl scout troop for many years, drivingfor Meals on Wheels, and working in theCareer and Counseling Center at AcalanesHigh School. Two years ago, she joinedCCSLS as a staff attorney, and has handleda diverse array of cases ranging from elderabuse and consumer credit matters toadverse possession. In the fall of 2007,Verna began working on a special CCSLSproject. She wrote a grant proposal thatwas accepted by the California BarAssociation’s Legal Services Trust FundProgram. In addition, she has instituteda pilot program: The Senior Self-HelpClinic (which is a collaboration betweenthe Contra Costa Superior Court andCCSLS — see article on page 9). Availableon a weekly basis, this program helpsseniors in our county who are representingthemselves in court. Staff at the clinic areavailable to help with elder abuse temporaryrestraining orders, to assist pro perclients with forms and procedures, and tomake referrals to legal or other supportservice providers.The clinic is the most recent programat the court designed to assist this traditionallyunder-served population. Earlierthis year, the Elder Court debuted inDepartment 22 of the Contra CostaSuperior Court (see Bench Talk on page 8 formore information). Many self-representedseniors who have been the victims of elderfinancial, physical or emotional abuseappear before Judge Cram seeking protectiveorders. Verna’s pilot project providesassistance to seniors who need aprotective order and aren’t otherwiserepresented by counsel. When asked aboutthis program, Judge Cram reported: “Itwas great to see how well this programworked—from day one. To see a senior gettingthis help is fantastic.”Geoff and Verna have contributed somuch, it is hard not to be amazed. Forthose readers who have not yet made orfulfilled their own pro-bono commitmentfor 2009, these two help us recognizesome of the many ways in which attorneyscan assist indigent parties, assist the courtin processing its cases and increase accessto justice. For further information on howyou can become involved, please contactCraig Nevin at cnevin@lawnrs.com. u22 May 2009


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ethics cornerby Carol M. LangfordWe all know that economic times are bad.What you may not know is how creativelawyers can be in an effort to create anincome stream where the well has run dry.This is reflected in the calls and emails Iam getting about various schemes (cough— business ventures — cough) lawyersare cooking up to survive the financialcrisis. A call to the State Bar uncoveredthat they too are getting an unprecedentednumber of calls from lawyers about goinginto business with brokers, financial planners,and others wanting to join forces tostem their losses. The complaint intaketelephone line at the Bar is getting at least50 calls a day from lawyers across Californiaabout this issue.The most common pairing the Bar isgetting calls about is a lawyer and a brokerwho decide to engage in loan modificationservices. Brokers first call attorneys theyknow to solicit them to form a joint ventureto process loan modifications for people withforeclosure problems. The homeowner paysthem upfront, with no guarantee that s/hewill get the modification. You can guess therest: the loan modification does not comethrough, and the homeowner files a StateBar complaint.Lawyers initially do not worry aboutthe Bar and legal malpractice implications.They believe that the client’s credit isdamaged in the first place, so it is theclient’s fault that the loan fell through.But wait. Isn’t that what caused the financialmeltdown in the first place — peoplewith bad credit obtaining loans? And canlawyers charge people to do work thatlikely will never result in any benefit tothe client by selling the possibility ofobtaining a loan? There are no easy answersfor a homeowner who is on the edge of theeconomic abyss but has not yet fallen in.The Rules of Professional Conduct onfee splitting (1-310 and 1-320) come intothe picture any time lawyers get involvedwith non-lawyers in a business partnership.Rule 3-300 is also implicated since thelawyer is getting into a legal — as well asa business — relationship with a client.COPRAC Ethics Opinion 1995-141 isright on point and you can get it online atthe State Bar website. It describes all theways lawyers can fall into an ethics pit withthese deals and should be read by everyonecontem plating an arrangement with anon-lawyer.These “work around” ventures (as theBar calls them — i.e. trying to form apartnership with a non-lawyer to “workaround” the Rules of Professional Conduct)are most often too problematic to be lucrativeto lawyers. Perhaps that is becausefinancial advice is a much different conceptthan legal advice. People know that someonehas to lose a case, and that they mayhave to settle for less than they hoped toreceive. But people cannot wrap their mindaround a financial loss as easily.The lawyer who is targeted by thebroker, financial planner, etc., is usuallystruggling financially, or is a new lawyerwho hasn’t yet cemented his or her role inthe legal community. The broker tells thelawyer of the money to be made if theyJulie SchumerCertified Appellate SpecialistCertified by the State Bar of California Board of Legal SpecializationMotions, Appeals & Writs30 years experience925.254.3650juliesch@ix.netcom.com • www.bayareaappellatelawyer.com— Wanted —ConservatorshipsthinkMatt Tothas inPedder, Hesseltine,Walker & Toth, LLPoldest partnership in Contra Costa County(52 years)p 925.283-6816 • f 925.283-36833445 Golden Gate Way, P.O. Box 479Lafayette, CA 94549-0479AV Martindale-Hubbell24 May 2009


work together, and stresses that togetherthey will help people in distress, appealingto the nobler motives of the young lawyer.But the broker has a real monetary incentiveto partner with a lawyer — which hasnothing to do with helping the homeowner— because by law a broker can’t acceptmoney until the end of the transaction.Lawyers are not so bound and can takemoney upfront, handing over the broker’sshare early, before the deal is done.The folks who don’t get approved fora loan (or who fail to make money) complainto the Bar, forcing an already-strugglinglawyer to be in serious trouble. Least anyof you think law firms are immune to this,they are not. I get calls from firms seekingto get into ventures with lobbyists anddevelopers, too. They bring in non-lawyersas part of the firm and then seek to getadvance conflicts waivers from their clientswho may be affected by the work the nonlawyerwill do. There are ways this type ofthing can work, but you need to consultwith someone before trying it.Try to hang on and not do somethingthat could get you in trouble. This financialcrisis shall pass, probably by the endof the year. u— Carol M. Langford is a lawyer specializingin attorney conduct matters in Walnut Creek. Sheis a past chair of the California State Bar EthicsCommittee and an adjunct professor of ethics atU.C. Hastings College of the Law. Please submityour ethics questions to langford@usfca.edu.Real Estate LawyerOver 25 years experience in the real property business!Commercial/ResidentialTitle Matters • Probate/TrustsDispute Resolution (International)Law Offices ofMagany Abbass3445 Golden Gate WayLafayette, CA 94549925.283-9088Arlene SegalLaw Offices of Arlene SegalLitigation - MediationTrust and Estate Disputes • Financial Abuse100 Pringle Avenue, Suite 780 • Walnut Creek, CA 94596telephone (925) 937-4224 • fax (925) 937-4273note newAddress!Contra Costa Lawyer 25


Glenn & Dawson LLPCertified Public Accountantsnew membersDonald A. Glenn CPA, ABV, CVA, CFELeslie O. Dawson CPA, ABV, CVASpecializing inLitigation Support – family lawBusiness ValuationsProbate and EstatesFinancial InvestigationsAudit Tax and Accounting Servicesfor individuals andprivately owned companies.323 Lennon Lane, First FloorWalnut Creek, CA 94598Telephone (925) 945-7722Facsimile (925) 932-1491Mark V. MurphyPersonal InjuryReferrals RequestedOver 25 years experiencerepresenting injury victims.Practice dedicated solely toPersonal Injury.Each client given prompt,courteous attention.Antioch andSan Ramon Offices925.552.9900Ericka L. AckeretMcNamara Law Firm925.939-5330John C. AdamsMcNamara Law Firm925.939-5330Ara AlikianMcNamara Law Firm925.939-5330Amy L. AlvisLiving Trusts by Amy925.478-6435Daniel ArsenaultBardellini, Straw,Cavin & Bupp, LLP925.277-3580Verne BallBingham McCutchen925.975-5301Edna V. BasaTenax Law Group, P.C.510.234-2808Robin M. BirnbaumLaw Student925.686-0497Robert G. Boden, II517.673-7400Sarah F. BurkeBurke ADR415.307-9740Patricia L. CrumpleyLaw Offices of Patricia L.Crumpley925.455-0538Gregory D. DeleeLaw Offices of Greg Delee925.695-5703Konstantine DemirisContra Costa County Counsel925.335-1800JoAnne L. DunecMiller Starr Regalia925.935-9400Derek M. DuarteMcNamara Law Firm925.939-5330Cheryl FabioLaw Student510.206-4407Tom FamaBardellini, Straw,Cavin & Bupp, LLP925.277-3580Crystal A. Fernandes925.683-7901Constance H. FiguersPerkins & Grohs925.283-7938Juliana K. N. Fiske925.360-2620Jenny Elizabeth HughesFitzgeraldVan De Poel, Levy & Allen, LLP925.934-6102Denise M. B. FosterLaw Offices ofMichael N. Gendelman925.829-6760Stephen J. FowlerMiller Starr Regalia925.935-9400Corinne N. FratiniMorrison & Foerster, LLP925.295-3300Erin M. GallagherArcher Norris925.930-6600Selam S. GezahegnLaw Student408.829-1272Peter Goetsch925.858-8520Cecily E. Gray510.684-1324Brian H. GunnWolfe & Wyman, LLP925.280-0004Andrea M. HicksWhiting, Fallon, Ross& Abel, LLP925.296-6000Christy L. HunsbergerLaw Student925.989-0280Jessica L. Hunter510.435-8770Tatum HunterFilice Brown Eassa& McLeod, LLP510.444-3131Linda Boi HuynhJAMS925.975-5795Edward C. HsuMorison Ansa HoldenAssuncao & Prough, LLP925.937-9990Greogory IskanderLittler Mendelson925.932-2468Benjamin A. JohnsonLaw Office ofBenjamin A. Johnson925.472-0232Meredith JohnsonPerseus Wealth925.938-2800Rhett R. JohnsonEdrington, Schirmer& Edrington925.827-330026 May 2009


local civil jury verdictsby Matthew P. GuichardThe year 2008 witnessed a total of 18 juryverdicts in Contra Costa County SuperiorCourts. Plaintiffs prevailed in but 3 of thosejury verdicts, and defendants in 15. 2007was a bit kinder to plaintiffs, with 14 juryverdicts out of a total of 25 jury trials. 2006saw 25 total jury trial verdicts. 2005 had28 total jury trial verdicts.This year started with a whimper, witnessingno jury trials to verdict, and onecourt trial. For those who are counting, atleast the plaintiff won that lone court trial.February had two jury verdicts and twocourt trial verdicts. Plaintiffs took both juryverdicts, and defendants took both courttrial verdicts.Our first case report is Kretchmer/Chavezv. East Contra Costa Fire Protection District, etal., Case #C06-00125. The HonorableBarbara Zuniga presided. The plaintiffs— Diana Quaintance, Carol Kretchmer,Sinette Chavez and the Macaranas family— were represented by Jim Larsen, CharlesCuster, Scott Bonzell, and Mark S. Castillo/Gina Acosta respectively. The defendantwas represented by Timothy J. Ryan.Ms. Quaintance settled her claims justbefore trial for the sum of $1.2 million. TheMacaranas family also settled (for an undisclosedamount) before trial.This case was a personal injury actionarising out of a multi-vehicle intersectionaccident at Camino Diablo and Vasco Roadson the afternoon of June 5, 2005, involvinga fire engine en route to a fire, with emergencylights and siren activated. Fifty-five-year-oldCarol Kretchmer was driving her ToyotaCorolla northbound on Vasco Road. Fortyyear-oldSinette Chavez was in the rear seat.The engine driver testified that the signallight on Camino Diablo was red for hisdirection as he approached the intersection.He slowed to 15 mph before entering, afterchecking for traffic on Vasco Road and failingto see the northbound Toyota. The fireengine was struck broadside by Kretchmer’sToyota in the number one northbound lane.Kretchmer also failed to see the fire engineand she neither braked nor took any evasiveaction before the impact.The CHP witness statements corroboratedthe fire engine driver’s testimony thathe slowed to 15 mph before entering theintersection. But these same witnesses, andlater-identified witnesses, all testified thatthe fire engine was traveling between 35 to50 mph and did not slow as it entered theintersection against a red light.Kretchmer suffered significant internalinjuries including blunt trauma to her leftside, a collapsed lung, air in lung, multipledisplaced rib fractures, and a brokenclavicle. She was hospitalized for nearlytwo months. Her past medical expensestotaled $460,000. She worked with arespiratory therapist who had a 30-yearwork history. She claimed that she wasunable to return to her previous occupationand could only work part-time in a new,less physically demanding occupation. Sheclaimed a past and future wage loss of nearly$500,000.Kretchmer’s lowest settlement demandwas $740,000. The Fire District raised itssettlement offer to $425,000 during trialand then made a high/low offer of $200,000/$700,000 while the jury was deliberating.Following one day of deliberations, thejury returned a verdict in favor of Kretchmerin the gross amount of $759,851.44 (economicdamages of $709,851.44 and noneconomicdamages of $50,000.00). The juryassigned 30% fault to Kretchmer and 70%fault to the fire engine driver. The net awardto Kretchmer was $531,896, plus costs.Plaintiff Sinette Chavez was hospitalizedfor two months and suffered significantinjuries, including a displaced neck fracture(C-2), which required several surgeries, pinsand screws. She suffered broken ribs, abroken clavicle and a leg gash. Her pastmedical expenses totaled $730,000. She alsosuffered significant and permanent limitationsin her neck range-of-motion, whichprecluded her from returning to her previouspart-time occupations as waitress andhome health aid worker. She claimed shewas only able to return to work in a moresedentary position (e.g. a receptionist). Thedefense did not contest her medical claim.Chavez claimed past and future wage lossesof $65,000 to $93,000, plus $90,000 infuture medical care expenses.In its defense, the Fire District assertedthat Chavez failed to present a timely tortclaim within six months of the discovery ofher cause of action for personal injuries.Chavez did not present her tort claim untilmore than one year after the accident.No settlement negotiations of any consequenceever occurred between Chavez andthe Fire District due to the issue of the tortclaim defense.The jury returned a verdict in favor ofthe Fire District and against Chavez on thetort claim defense.28 May 2009


Tiller v. John Muir Medical Center, et al., Case#C07-02354, was tried before the HonorableJoyce Cram. Jay G. Chafetz ofWalnut Creek represented the plaintiff, whileMartin J. Everson, also of Walnut Creek,represented John Muir Medical Center.David Walker of Danville represented thedefendant medical doctor.On January 8, 2007, decedent RoyGustavson, 91, died as a result of respiratoryfailure. The day before, Gustavson — whohad a history of chronic obstructive pulmonarydisease (COPD) — sustained the acuteonset of chest pain and shortness of breathwhile at home. He was taken by ambulanceto the ER at Concord’s John Muir MedicalCenter. While en route to the hospital, hewas treated with a cardiac protocol of oxygen,nitroglycerine, and aspirin. Gustavsonarrived at the ER at 3:55pm. Upon arrival,his complaint of chest pain had resolved,although he remained short of breath. Hewas triaged as a level two, and placed in abed where he was put on continuousmonitoring of his vital signs.Shortly after arrival in the ER, he wasseen by Dr. Leland Mew, who ordereddiagnostic testing that included a chest x-ray,EKG, and blood work. Dr. Mew also ordereda nebulizer treatment to improve respirations,and interpreted the test results to benegative. The doctor ordered Gustavson tobe discharged approximately two-and-a-halfhours after Gustavson’s arrival at the ER.Gustavson was prepared for dischargeby a nurse, who noted that he became shortof breath while moving from the bed to awheelchair. Shortly thereafter, another nursewheeled him out to his car and saw himbecome short of breath when moving fromthe wheelchair to his car.Gustavson was then transported homeby a family member. His condition worsened,and he was brought back to the hospital byambulance six hours later in critical condition.He died later that morning as a resultof respiratory failure.By CCP §998, the plaintiff demanded$30,000 from John Muir and $50,000 fromthe doctor. John Muir offered to waive costs.Defendant doctor offered $5,000.The jury returned a defense verdict onbehalf of John Muir and the doctor.Steven E. Hall and Carole Hall v. Birdsall, etal., Case #CIVMSC 05-01718, was presidedby the Honorable Judith Craddick.Edward Nevin of San Francisco representedthe plaintiffs, and G. Patrick Galloway andShelley Smith of Walnut Creek representedthe defendants.This was a medical action brought bySteven and Carol Hall, residents of Lexington,Kentucky. Dr. Birdsall was dismissedin exchange for a cost waiver. The case wentto trial against emergency physician DanielLibke, MD and California EmergencyPhysicians, and was centered around thetreatment rendered in the Mt. Diablo ERon May 18, 2004. Mr. Hall, staying in aConcord hotel while visiting with his wifefrom Kentucky, was seen in the ER. He hadan acute onset of nausea, vomiting and anEKG that showed “poor R wave progression.”The following morning, at approximately7:00 am, Mr. Hall (then staying withhis wife in San Francisco) woke up withshortness of breath and gasping for air. Hereturned to Lexington that same day, wherehe was diagnosed as having had a heartattack.The defense conceded that Mr. Hall didin fact have a heart attack. However, experttestimony by the defense opined that theheart attack occurred after he was dischargedfrom the Mt. Diablo ER, and mostlikely, when he woke up the followingmorning in San Francisco with shortness ofbreath and gasping for air. Mr. Hall electednot to return to the emergency room. Rather,he returned home to Kentucky and did notseek medical treatment for more than 24hours. According to the defense experts,Mr. Hall’s EKG taken when he returnedhome revealed he had an ongoing heartattack, as contracted with the EKG fromthe Mt. Diablo ER. In Kentucky, Mr. Hallwas diagnosed as having significant cardiacdamage and a reduced ejection fraction, andrequired implantation of a defribulatorrequiring the need for life-time cardiacmedications/care, as well as signifi cantlimitations to his activities of daily living.Prior to trial, plaintiffs made no firm settlementdemand. In closing argument, plaintiffs’counsel asked the jury to award $933,702.Defendants offered to waive costs.The jury returned a defense verdict. u— Matthew P. Guichard is a principal inGuichard, Teng & Portello, APC. Send caseinformation to: 1800 Sutter Street, Suite730, Concord 94520 – or – contact Matt at925.459-8440 or mattg@gtlaw.net.Young Design&ProductionD E S I G NW R I T I N GE D I T I N GYoung Design & Productionis the designer for the ContraCosta County Bar AssociationSpecializing inlaw firm brochuresand newslettersNancy YoungOwnerP.O. Box 1867 Benicia, CA 94510(925) 229-2929 or (707) 748-5775email: young-design@prodigy.netContra Costa Lawyer 29


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Will & Trust LitigationElder Abuse Litigation • ConservatorshipsB A R R & B A R RA T T O R N E Y S101 Gregory Lane, Suite 42 • Pleasant Hill, CA 94523-4915 • (925) 689-9944Edward E. BarrChristopher M. MooreLoren L. Barr*John Milgate, Of CounselJoseph M. MorrillTracey McDonald, Paralegal*Certified Specialist, Estate Planning, Trust and Probate Law, The State Bar of California Board of Legal SpecializationContra Costa Lawyer 31

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