The National Law Journal's L.A. Legal Pad

Cal Supremes say a footrest is a footrest is a footrest

Overturning two lower courts, the California Supreme Court ruled yesterday that state law does not prohibit people from carrying bicycle footrests, even though police say some gang members use the parts as illegal metal knuckles.

The case arose from the trial of a 14-year-old boy in Juvenile Court for possession of such a footrest, and the judge agreed with police contentions that the device was to be used as a weapon. The state high court took issue, saying that unlike metal knuckles a footrest was not worn on the hand - this in spite of what Attorney General Jerry Brown's office wrote in favor of prosecution, comparing the footrests to "clutch purses."

Justice Carol A. Corrigan wrote in the decision that even if the fashion industry considers purses to be worn, "it is unlikely that the Legislature would have considered it in connection with a weapons statute."

Goel pleads guilty in Galleon case

Rajiv Goel, a former Intel Capital director who was arrested in San Jose, California, last October, pleaded guilty on Monday to fraud in the Galleon insider trading case. He told a New York court that hedge fund founder Raj Rajaratnam gave him money for personal needs and that he profited from illegal trades.

Goel admitted to conspiring with Rajaratnam on confidential information about Intel Corp.'s quarterly earnings and on investments by Intel in Clearwire Corp. Goel says he gave Rajaratnam the information because of their longtime friendship. The two had met 25 years ago at the Wharton School of Business.

The charges carry a prison sentence of up to 20 years. A sentencing proceeding is scheduled for May 28.

Full Reuters story here.

New CA Toyota suit links crash to throttle system

The family of a woman killed in the crash of her Toyota Camry has filed suit against the automaker, claiming the crash was caused by faulty electronics.

The suit says Toyota's electronic "drive-by-wire" throttle system caused the car's sudden acceleration to 100 miles per hour.  Uno weaved her car to avoid hitting other drivers when the car hit a curb, sending it into the air and finally into a tree.

Toyota is not commenting on the suit, but has made general statements that they have found no evidence of electronic problems in their automobiles. 

Members of the Uno family said they hope their lawsuit and others like it will prompt Toyota to broaden its recall to include all models equipped with the throttle system and retrofit those cars with a brake override system. The Camry accounts for the largest number of U.S. automobiles involved in Toyota's recall, which has reached close to 8 million vehicles worldwide.

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Lewis Brisbois announces new partners

Lewis Brisbois Bisgaard & Smith LLP announced the election of 29 associates to the partnership last week. Among them:

Jeanne Bawa and Matthew Walker are based in the San Bernardino office. Ms. Bawa specializes in the defense of workers' compensation matters, and Mr. Walker practices in all areas of civil litigation.

Andrew Benzinger focuses on general civil litigation in the areas of tort/personal injury and products/premises liability, at trial and appellate levels, and is based on the Sacramento office.

Rachel Lee, Kim Cruz, Stephen Kwan, William Pallares, Miriam Rana, Jeffrey Healey, Alexander Comis and Heidi Yoshioka are all based in Los Angeles. Ms. Lee's practice focuses on employment and labor. Ms. Cruz has 11 years of litigation experience with an emphasis in construction litigation, products liability and surety law. Mr. Kwan focuses his practice in the area of employment relating to workers' compensation and other civil matters. Mr. Pallares has considerable experience in commercial litigation and products liability. Ms. Rana represents public agencies in eminent domain, inverse condemnation and workers’ compensation actions. Mr. Healey's practice focuses on medical malpractice and elder law. Mr. Comis specializes in the defense of workers' compensation actions. Ms. Yoshioka has 15 years of experience in the area of general liability insurance defense.

Sarah Hart has 14 years of experience in the areas of products liability and general negligence defense. Stefanie Vaudreuil practices in the firm’s Employment and Labor Group. Both are in the Orange County office.

Thomas Teschner specializes in defending civil accounting malpractice actions and federal tax litigation. John Tsumura has successfully defended many cases involving claims of professional negligence. Both are in the San Diego office.

Delta pumping limits eased for two weeks

Federal Judge Oliver Wanger temporarily lifted pumping curbs designed to protect salmon migration in the Sacramento-San Joaquin River Delta on Friday. The decision means that water agencies serving mostly the San Joaquin Valley and Southern California can run Delta pumps for the next two weeks to take full advantage of flows from recent storms without regard to restrictions meant to protect salmon, steelhead and other fish.

Wanger concluded in his decision that the additional pumping would not seriously harm the young winter-run salmon moving through the delta to the sea, whereas reduced diversions were significantly hurting agricultural and urban water supplies.

After two weeks, the temporary order is open to renewal.

Click these for details.

Toyota in Lieu's line of fire

Toyota is being scolded with many voices from many corners.  Add Ted Lieu to the growing choir.

Lieu, chairman of the state Assembly's Rules Committee as well as Democratic candidate for California attorney general, successfully pushed last Thursday for a ban on the state's lower house purchasing of vehicles that are not at least 50 percent assembled in the United States. The move is being seen as a slap at Toyota Motor Sales U.S.A., which is located in Lieu's Southern California district.

Lieu says the reinstatement of the "Buy American" policy is in part a reaction not only to Toyota's current safety problems but also for the company's move to close a Bay Area manufacturing plant, which would lay off about 4,700 workers.

LegalNewsline has the story here.

Prosecutors recommending 20 years for 74-year-old convicted Chinese spy

Prosecutors will be seeking a 20-year prison sentence today for a Chinese-born engineer convicted of six federal counts of economic espionage.

Dongfan "Greg" Chung was found guilty in July for keeping 300,000 pages of sensitive papers in his home. The documents also included information about the fueling system for a booster rocket. The government accused Chung of using his status as a stress analyst with high-level clearance with Boeing and Rockwell International to steal the documents.

Chung's attorneys argued that the 74-year-old engineer broke no laws by taking the papers home, even though he had violated policy at Boeing.  But the government believes he began spying for the Chinese as early as the late '70s, and U.S. District Judge Cormac J. Carney agreed the evidence showed Chung had been passing information to Chinese officials.

Chung's defense attorneys have requested an evidentiary hearing regarding the prosecution's withholding a report of an FBI interview with a Chinese professor with whom Chung had corresponded.

Full story at the Fresno Bee.

SEC drops Broadcom suit

The U.S. Securities and Exchange Commission has voluntarily dropped its civil case against four former executives of Broadcom Corp., including its former general counsel, David Dull.

Filed last year, the SEC's suit had named former CFO William Ruehle and co-founders Henry Nicholas and Henry Samueli, in addition to Dull.

On Dec. 15, U.S. District Judge Cormac Carney dismissed criminal charges against Nicholas and Ruehle, based in large part on prosecutorial misconduct. In a notice of intent not to proceed filed on Thursday, Molly White, an attorney in the SEC's Los Angeles office, cited that decision as well as statements Carney made during a subsequent hearing on Jan. 28.

SEC spokesman John Heine declined to comment beyond a news release issued on yesterday.

Full story at NLJ.com.

DOJ still unconvinced by GBS 2.0

Late yesterday afternoon, the Department of Justice said in a brief that it still had objections to the so-called Google Books Settlement, despite changes both parties have made.

The DOJ, while commending both parties for their progress, still had copyright and judicial process concerns with regards to the way the settlement stands now. 

The long running case has run into objections from several corners, from consumer advocacy organizations to scholars.  Details at the LA Times blog here.

Celebrating this recent action from the DOJ is attorney Gary Reback, who began the Open Book Alliance with the Internet Archive's Peter Brantley.  The Alliance promises to counter Google's monopolization efforts and counts among its members one Microsoft Corp., who once upon a time in the 1990s was Reback's nemesis when he prosecuted the company for attempting to embed its browser in PC operating systems.

Read a profile of Gary Reback here.

Luce Forward announces new San Diego leadership changes

Yesterday Luce Forward announced several leadership changes, including four in San Diego.

Partner Dennis Doucette will now serve as co-chair of the firm's business/corporate practice group with Rick Frimmer.

Dennis Doucette practices in corporate, securities, mergers and acquisitions, corporate and venture financing. His mergers and acquisitions experience includes representation of buyers and sellers in mergers, stock and asset purchases, management buyouts, and related transactions.

Rick Frimmer has over 30 years of experience as corporate and tax counsel to public and private organizations on capital formation, acquisitions, forward strategic planning and turnaround implementation. He has litigated major commercial and tax cases for Spang & Co. and Southeastern Pennsylvania Transportation Authority.

Additionally, Marie Burke Kenny will head the labor and employment practice group and Kenneth Stipanov will manage the firm's real estate transactional practice group.

Marie Burke Kenny represents employers in federal and state court litigation involving wage and hour, wrongful termination, discrimination, harassment, retaliation and unfair competition claims. She is also an adjunct professor of employment law for San Diego State University's Human Resources Certification Program.

Kenneth Stipanov has wide experience in the area of commercial real property transactions, with particular expertise in the acquisition, disposition, financing and leasing of neighborhood shopping centers, having been engaged in over one billion dollars' worth of such transactions in the last few years.He has represented a variety of clients, including closely-held portfolios, institutional-type investment companies, end-users, and family groups.

Jones Day announces new partners in CA

Yesterday Jones Day announced the addition of four new partners throughout California. Two are in San Diego.

Patrick Elsevier is moving to Jones Day from Alston & Bird’s Atlanta office. He is an IP litigator specializing in biotechnology patent litigation.  He received his Ph.D. in biochemistry and molecular biology from Emory University.  Prior to joining Jones Day, he represented a world leading animal health company in several patent infringement litigations.

Ken Funahashi comes to the firm from Baker & McKenzie. He is a transactional lawyer who represents firms in Europe and Asia with investments in the United States. Over the last five years he has handled 35 transactions with an aggregate value of over $5 billion.

In addition, four associates have moved up to partner.  Two are in Los Angeles.

Erik Swanholt has substantial experience in a broad range of litigation matters, with an emphasis on large product liability cases, complex commercial litigation, and toxic torts. Representative clients in recent public matters include Abbott Laboratories, TAP Pharmaceuticals, Genentech, and PepsiCo.

Erica Reilley's practice focuses on issues and appeals. Among her accomplishments she has authored post-trial and appellate briefs that secured complete reversal, and entry of judgment in Jones Day's client's favor, on a class action race discrimination case against a public entity. She has worked on pro bono matters for the Ninth Circuit Pro Bono Panel, Public Counsel, and Bet Tzedek and has volunteered at the LACBA Domestic Violence Project.

Click here for the full story.

Jury awards multimillion dollar verdict in malpractice suit

In Riverside Superior Court last Friday, a jury awarded an Arizona couple $16.5 million in a medical malpractice lawsuit against Southern California neurosurgeon Christopher Pham. They found Pham negligent in treating Trent Hughes in 2003 for pain and tingling related to an off-roading accident.

According to Hughes' attorneys, Pham was the neurosurgeon on call and was required to report to the hospital within 20 minutes.  Instead, he did not examine him until the following day and operated on him two days later.  By that time it was too late, and Hughes was a paraplegic.

Burt Rosenblatt, co-counsel for Hughes, noted that in spite of the multimillion-dollar verdict, a portion of the jury award totaling $3.75 million would be reduced to $500,000 due to California law limiting the amounts awarded in malpractice lawsuits.

Full story at LATimes.com.

Manatt names Shatz to partner in LA

Manatt, Phelps & Phillips LLP announced yesterday that Benjamin Shatz has been elevated to partner.  He is with their appellate practice group in their Los Angeles office.

He is the Chair of the Los Angeles County Bar Association Appellate Court Committee and Vice Chair of the California State Bar Committee on Appellate Courts. In 2008 he was named "Lawyer of the Year (Private Sector)" by the Constitutional Rights Foundation for his work with the Appellate Court Experience program.

Mr. Shatz served as a law clerk to the Honorable Robert J. Johnston, United States Magistrate Judge in the District of Nevada, and as an extern to the Honorable Dorothy W. Nelson, United States Court of Appeals for the Ninth Circuit.

New Orrick partners in LA and Orange County

Orrick, Herrington & Sutcliffe LLP announced today the admission of seven lawyers to the partnership, effective January 1, 2010. Two of them are based in California.  Mark Mermelstein is in the Los Angeles office and Thomas J. Gray is in Orange County.

Mark is a member of the firm's litigation group. His practice focuses on white collar and general criminal defense, as well as securities and complex civil litigation, in federal and state courts. Mark earned his J.D., magna cum laude, from the University of Pennsylvania Law School in 1997 and a B.A., First Class Honors, from McGill University in 1994.

Tom is a member of the firm's intellectual property group. His practice focuses on intellectual property litigation with an emphasis on Internet law and trade secret litigation and counseling. He has experience litigating and trying complex matters involving trade secrets, patents, trademarks, license agreements and other commercial disputes. Tom earned his J.D., cum laude, from Santa Clara University School of Law in 1997 and his B.A. in Economics from the University of Pennsylvania.

Retired 'gift card' judge censured by CJP

Yesterday the Commission on Judicial Performance censured retired Los Angeles Superior Court Judge Brett C. Klein because of his handling of a class action against Windsor Fashions, Inc.

The plaintiffs were suing the store or alleged violations of the Song-Beverly Credit Card Act. Customers were being asked for identification when paying by credit card. The parties reached a preliminary settlement that awarded each class member with a $10 gift voucher. The settlement also awarded $2,500 to class member Jacqueline Cohen and $125,000 in fees to class counsel Neil B. Fineman. Klein was substituting for the original judge, who was ill, on the day of the fairness hearing. It was then that he decided that Fineman and Cohen be paid in $10 vouchers as well.

The CJP referred to Klein's "pattern of sarcasm and improper remarks toward the attorneys" during the fairness hearing and "the appearance of being punitive toward the plaintiffs’ attorney and grandstanding to the press" in their decision. They also noted that Klein had been disciplined previously for similar misconduct. The decision bars Klein from holding future judicial office.

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Class-action suit says Nutri-Grain bars not so Nutri

A class-action law suit filed Monday in San Diego accuses Kellogg's of false advertising, claiming that the company's Nutri-Grain bars actually contain trans-fats.

In their ads, Kellogg's suggests that Nutri-Grain bars allow you to "Eat Better All Day" because they contain calcium and whole-grains, but the plaintiffs insist that those claims are invalidated by the presence of trans-fats, which contribute to diabetes and heart disease.

The plaintiffs are seeking compensatory damages and demand that Kellogg's mount a "corrective advertising campaign." Kellogg's is being sued for violations of he Lanham Act, Unfair Competition Law, Common law of Unfair Competition, False Advertising Law, and the Consumer Legal Remedies Act.

Full story here.  Consumer Affairs is sympathetic but not entirely convinced.

Civil rights groups sue Costa Mesa on behalf of day laborers

A pair of civil rights groups, the Mexican American Legal Defense and Educational Fund and the ACLU of Southern California filed a lawsuit in U.S. District Court in Santa Ana, challenging Costa Mesa's anti-solicitation ordinance that allegedly prevents day laborers from seeking work on the street.

The suit is a response to a recent police sweep in which undercover officers, posing as undercover employers, rounded up 12 men in a white van at three locations in the city on Sept. 25, then cited them for violating the ordinance after promising them $8 an hour jobs, according to activists.  The men, all of whom were Latino, were deported to Mexico within two days of their arrest after they were discovered to have been illegally working and living in the United States. 

Local police say they received more than 100 complaints about day laborers in certain neighborhoods, reporting public urination and other abusive behavior, which ultimately led to the sweep.

Full story at The Daily Pilot.

Alcala delivers opening statement on his own behalf

The Orange County Register continues its coverage of the Rodney Alcala trial today.

This morning, Alcala, who is defending himself against five murder charges, delivered an hour-long opening speech the OC Register called "rambling," in which he insisted he was at Knott's Berry Farm at the time Robin Samsoe was abducted in June of 1970.  He went on to say that earrings found in in his rented storage locker in Seattle after his arrest in 1979 were his and not Samsoe's.

Alcala admitted that he had been taking pictures of bikini-clad girls on Sunset Beach earlier on the day Samsoe was kidnapped, but he was not the photographer who approached Samsoe and her friend, in spite of the identification made by Jackie Young.

He did not mention the four other cases, which authorities linked to Alcala through DNA and other forensic evidence.

Full story here.

The Register is unimpressed with Alcala's performance.

Two new shareholders at Buchalter Nemer

Buchalter Nemer announced that Senior Counsel Mia S. Blackler and Of Counsel Scott O. Smith have been elected shareholders.

Ms. Blackler is a member of the Firm's Litigation Practice Group in San Francisco where she focuses on commercial, real property, financial institutions, and labor and employment litigation. She has also handled complex fraud actions and defended consumer class actions. Ms. Blackler was a double major in French and Linguistics at Cornell University, where she received a B.A. in 1993. She received her J.D. in 1996 from Boston University School of Law.

Mr. Smith is a member of the Firm's Litigation Practice Group in Los Angeles representing financial institutions, with an emphasis in commercial litigation, prejudgment remedies, receiverships, collections, loan workouts and insolvency issues. He is a member of the Los Angeles Bar Association, the American Bar Association, the Financial Lawyers Conference, the Commercial Law League of America, the National Conference of Bankruptcy Judges and the California Bankruptcy Forum. Mr. Smith received his B.S. in 1971 from the University of Southern California and his J.D. in 1974 from Loyola Law School.

Travel sites duck occupancy taxes in LA

Los Angeles County Superior Court Judge Carolyn Kuhl granted a request by Priceline.com Inc, Expedia Inc, Trip Network Inc, Orbitz LLC and Travelocity.com LP, Hotels.com LP and Hotwire Inc to invalidate $21.3 million in taxes, interest and penalties assessed by the city of Anaheim over the past nine years. The companies argued they were not liable for the 15-percent hotel occupancy taxes because they do not operate hotels, and their fees cannot be considered "rent" under the law.

Attorneys for Anaheim had argued that the city was owed a greater share because the online companies were collecting taxes from customers on the retail price of hotel rooms, but only paying the city the tax on the wholesale price.

An administrative-hearing officer sided with the city last year, ruling that Anaheim was owed the money because the travel companies were both the proprietor and the managing agent of the hotels they resold. The companies appealed, and the case was transferred to Los Angeles County where similar cases were being heard.

Click these for details.