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Posts on Jan 1970

Sometimes the Law Makes Sense

The legal cases that typically capture the most public attention are those that appear to be ridiculous or outrageous.  Probably the most infamous example is the McDonald’s “hot coffee” case.  However, for every instance in which a court or jury reaches an outrageous decision, dozens of cases are ignored where the jury or court “got it right.”  One such case is Espinosa v. Kirkwood, decided by the Second District Court of Appeal on June 23, 2010.

The case was a personal injury action by Michael Espinosa and Angel Vertiz arising from an automobile accident.  Espinosa and Vertiz sued Kenneth Kirkwood, the driver of the car in which they were passengers at the time of the accident.  The twist in the case was that the trio had just committed a residential burglary, for which they were later convicted, and were fleeing the police when Kirkwood’s car crashed into three other vehicles about a mile from the location of the burglary. 

At this point, you must certainly be feeling sorry for poor Espinosa and Vertiz for having suffered bodily injuries.  In the case that makes the cover of the supermarket tabloids, the duo recovers millions.  In real life, the pair gets nothing.

In the trial court, Kirkwood (or more likely his insurance company) moved for summary judgment on the ground the case was barred by Civil Code section 3333.3, which says: 

In any action for damages based on negligence, a person may not recover any damages if the plaintiff's injuries were in any way proximately caused by the plaintiff's commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony.

The trial court granted summary judgment against Espinosa and Vertiz.  Unhappy with that result, they appealed the decision.  Plaintiffs argued that the statute required proof that the felony or flight caused the injuries.  The court of appeal disagreed, stating:

The purpose of the initiative would be defeated if a defendant was required to prove that the actual commission of the felony or flight caused the injuries.  To the contrary, the intent of the drafters [of section 333.3] was to require plaintiffs who are felons to assume the risk of any injuries sustained during the commission of a crime or during the flight to avoid apprehension for the crime.

Not surprisingly, the court concluded that the plaintiff’s injuries resulted from their act of flight.  The court also noted that the act of fleeing makes collisions of this type highly foreseeable.  Finally, the court noted that their status as passengers in the getaway car did not change anything because their own conduct in committing the crime and getting into the car caused their injuries.

So, Espinosa and Vertiz were unlucky and got no money in their personal injury action.  However, maybe they’ll get lucky and spill excessively hot coffee on themselves in prison.

Michael M. McMahon

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Paralegal Ethics

Paralegals are an integral member of the legal services delivery team.  They fill a role in law firms of all size and practice area and also work in the public sector and in corporate settings.  They are well educated and able to work in sophisticated areas of the law practice.  The involvement of paralegals in providing legal services continues to develop as members of the legal profession seek avenues to increase access to legal services and to control legal costs.  It is crucial that paralegals have a clear understanding of the ethical rules that govern their work so that they provide competent services with integrity and within ethical parameters. 


The American Bar Association has developed model guidelines for the utilization of paralegals.  The guidelines set out that, although a lawyer is responsible for all of the professional actions of a paralegal performing services at the lawyer’s direction, the paralegal’s conduct must be consistent with the lawyer’s obligations under the rules of professional conduct of the jurisdiction in which the lawyer practices.  Further, a lawyer may not delegate to a paralegal the responsibility for establishing an attorney-client relationship or fees to be charged for legal services or the responsibility for a legal opinion rendered to a client.  Attorneys may not enter into agreements with a paralegal to split legal fees.   Paralegals must also refrain from the unauthorized practice of law.  They are bound by the same rules governing client confidentiality and conflicts of interest that govern attorneys. 


California Business Code section 6450(d) states that every two years a paralegal “shall be required to certify completion of four hours of mandatory continuing legal education in legal ethics…”  It is the paralegal’s responsibility to maintain records proving that the educational requirements have been met.


The National Association of Legal Assistants (NALA) and the National Federation of Paralegal Associations (NFPA) have developed codes of ethics and professional conduct as well.  The California Alliance of Paralegal Associations (CAPA) has also written ethics guidelines.  All of the ethics codes for paralegals echo those promulgated by the American Bar Association and the State Bar of California.


Ellen Sheffer


Leslie Donahue

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Determining the Role of the Insured in an Accident

In most cases the alleged role as wrongdoer is pretty clear, but the claimant should define it anyway. The insured's alleged role in many instances defines the legal capacity and therefore the legal exposure.


    For example, in a construction case, is the claimant suing the property owner for his alleged active negligence, passive negligence for failing to prevent the dangerous condition or for "non-delegable duty" to keep the property safe under a "special risk"?


    The answer to this question will assist you in understanding the probable theories of liability against your insured.


    Once the likely theories are outlined, you can then address your questions to witnesses and other investigation efforts and obtain a much more focused and relevant work product.


    A seemingly clear-cut example might be the routine rear end collision.  The theory undoubtedly will be inattention and/or speed.  Knowing that, we should question everyone concerned about where their attention was at the time and what the approach speeds were at various physical reference points up to the point of impact.  Always remain open to other possible explanations for the accident as you gather information.


    Later, when we compile the evidence, perhaps we can show that the physical damage seen is not consistent in severity, location, angle of deformation, etc., with the impact described by the claimant.  Or perhaps there are mitigating circumstances to explain the incident.


    In some cases, careful investigation will mesh beautifully with information developed during discovery. Going back to our example of the rear end collision, perhaps facts will come out that establish that plaintiff's larger, heavier automobile with $2,000 in damage could not have been damaged by our client's car and, further, that the speed of impact to our car was only 4 – 5 m.p.h. and, therefore, could not have caused the injuries claimed.


    In other cases, rear end impact claims may be deflated by evidence to show a sudden and unreasonable stop or unexpected backing by the claimant.  Or perhaps that the claimant slowed to turn without signaling or that his brake lights were not functioning.


Donald D. Wilson

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Municipal Attorneys and Religious Topics

    I’m always struck by the amazingly wide range of issues that municipal attorneys get to deal with.  It’s what keeps the practice continually fresh and interesting.  This was brought to mind recently when the U.S. Supreme Court issued a ruling in late April regarding a cross on Federal land on the Mojave National Preserve.  The cross had been put in place in 1934 by members of the Veterans of Foreign Wars (VFW), to honor American soldiers who had died in World War I.   The ACLU had brought suit on behalf of the Plaintiff, Frank Bruno, claiming that using a religious symbol as a national war monument was offensive and violated the separation of church and state.  The lower courts, up through the 9th Circuit Court of Appeals had agreed, ordering the removal of the cross.  In a narrow 5-4 ruling in the case, Salazar v Bruno,  ( a greatly divided U.S. Supreme Court sent the case back to the lower court, saying it used the wrong standard.  In the lead opinion in the case Justice Kennedy stated that “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm…” 

    I’ve taken an interest in cases involving crosses because years ago I was attorney for a city that had a cross issue.  In Lompoc, there is a large cross that is prominently displayed on a hill in the City.  It had been constructed in 1912 to commemorate the 125th anniversary of the founding of the La Purisima Mission and the 100th anniversary of its destruction by an earthquake.  It had always been assumed that it was on City owned property.  One day I received a letter from a local atheist group demanding that the City take it down.  After some research we concluded it was on land owned by a local contractor whose family had been in town since the late 1800s.  I wrote a letter to the atheist group, telling them it wasn’t on our property, and adding something to the effect “by the way, did you know about the wonderful history associated with the cross…”  That did the trick and the issue went away.

    Other crosses in California, however, have been the source of great controversy.  In the San Diego area there is the infamous case of the Mt. Soledad cross.  It would take pages to detail the legal battles over that cross, which has been the subject of over 20 years of litigation, and includes maneuvering to save the cross by selling it to a private group (a move struck down by the 9th Circuit Court of Appeals), designation under federal law as a national veteran’s memorial, and two ballot measures.   The latest 9th Circuit case was argued just this last December and recent articles have speculated that the new Supreme Court ruling will make a difference in the newest pending Mt. Soledad case. 

    Several years ago the City of Ventura was also embroiled in controversy over a cross.  That cross was located in a City park and the controversy that erupted was defused by the City selling the cross and an acre of land surrounding it to the highest bidder, which turned out to be a local group, San Buenaventura Heritage, Inc, which now maintains the cross.  No litigation was ever brought, but it was threatened, which is what led to the sale of the land.

    Of course, cross issues are just one small category of the type of religious topics that can confront a municipal attorney.  For example, issues involving invocations at the start of meetings and religious displays in parks during holidays are not unusual and can be tricky and controversial. 

    As the narrow ruling in the recent Supreme Court case suggests, as well as the more than 20 year history of litigation in the Mt. Soledad cross case, the law in these matters is usually not as clear or easy as the public agency’s attorney might like.  At the same time, it’s being able to deal with fascinating issues with constitutional dimensions like these that let me tell folks that it’s never boring when you’re a municipal attorney…

David H. Hirsch

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