peacocks on a plane - los angeles county bar association · 6 los angeles lawyeroctober 2018 rena...
TRANSCRIPT
THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION
OCTOBER 2018 / $5
Los Angeles lawyer KC Marie Knoxexplains the complex California andfederal regulations on traveling withemotional support and service animals
page 16
Peacocks on a Plane
2018-19
LACBA DIRECTORY
Progress on MandatedCivil Defensepage 13
Kavanaughand PresidentialEmolumentspage 36
ASSIGNMENTOF TORT
LIABILITYIN DIVORCE
page 30
ADMISSIBILITY OFEXPERT OPINIONTESTIMONYpage 22
16 Peacocks on a PlaneBY KC MARIE KNOX
The lines between what may be considered an emotional support versus a service animal are blurred thus the legal accommodations that must beapplied to them may be confusing
22 Experts Liberally Construed BY PETER L. CHOATE AND WILLIAM H. DANCE
Recent California cases have created a gray area concerning the admissibility of expert opinion evidence in opposition to a motion for summary judgment
30 Who Will Pay?BY JACK J. MCMORROW AND BRIAN I. FRIEDMAN
California statutes provide for the assignment of debt liability regarding maritalproperty, but the complexity involved in marital dissolution may change therules drastically
Special Membership Directory Pullout 2018-2019 Los Angeles County Bar Association
F EATU RE S
Los Angeles Lawyer
the magazine of
the Los Angeles County
Bar Association
October 2018
Volume 41, No. 7
COVER PHOTOS CREDIT: TOM KELLER
10.18
8 Presidents PageNine requests of LACBA’s 26 practice sectionsBY BRIAN S. KABATECK
10 On DirectAllison Margolin, Cannabis AttorneyINTERVIEW BY DEBORAH KELLY
12 Barristers TipsSchool administrators’ responsibility concerning cyber bullying BY BRENT J. LEHMAN
13 Practice TipsInto the breach: progress on the right to counsel in civil mattersBY CLARE PASTORE AND JOHN POLLOCK
36 Closing ArgumentNexus of Kavanaugh and the president’s emoluments caseBY STEPHEN F. ROHDE
DE PARTM E NTS
LOS ANGELES LAWYER (ISSN 0162-2900) is publishedmonthly, except for a combined issue in July/August, by theLos Angeles County Bar Association, 1055 West 7th Street,Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period -icals postage paid at Los Angeles, CA and additional mailingoffices. Annual subscription price of $14 included in theAssociation membership dues. Nonmember subscriptions:$38 annually; single copy price: $5 plus handling. Addresschanges must be submitted six weeks in advance of nextissue date. POSTMASTER: Address Service Requested. Sendaddress changes to Los Angeles Lawyer, P. O. Box 55020,Los Angeles CA 90055.
4 Los Angeles Lawyer October 2018
Visit us on the internet at www.lacba.org/lalawyerE-mail can be sent to [email protected] Los Angeles Lawyer on Twitter at@LALawyerMag
EDITORIAL BOARD
ChairRENA KREITENBERG
Articles CoordinatorTYNA ORREN
Articles CoordinatorTHOMAS J. DALY
SecretaryJUSTIN KARCZAG
Immediate Past ChairJOHN C. KEITH
JERROLD ABELES (PAST CHAIR)TOM K. ARASCOTT BOYERNORMAN A. CHERNINCHAD C. COOMBS (PAST CHAIR)KEITH A. CUSTISGORDON K. ENGMICHAEL A. GEIBELSON (PAST CHAIR)SHARON GLANCZGABRIEL G. GREENTED M. HANDEL (PAST CHAIR)STEVEN HECHT (PAST CHAIR)DENNIS F. HERNANDEZHON. MARY HOUSETIFFANY BACI HUNTERMARY E. KELLY (PAST CHAIR)KATHERINE KINSEYDIANA HUGHES LEIDENLYDIA G. LIBERIOCAROLINE SONG LLOYDPAUL S. MARKS (PAST CHAIR)SANDRA MENDELLCOMM’R ELIZABETH MUNISOGLUCARMELA PAGAYGREGG A. RAPOPORTJACQUELINE M. REAL-SALAS (PAST CHAIR)SHAIL PANKAJ SHAHLACEY STRACHANTHOMAS H. VIDAL
STAFF
Editor-in-ChiefSUSAN PETTIT
Senior EditorJOHN LOWE
Art DirectorLES SECHLER
Director of Design and ProductionPATRICE HUGHES
Advertising DirectorLINDA BEKAS
Senior ManagerMELISSA ALGAZE
Administrative CoordinatorMATTY JALLOW BABY
Copyright © 2018 by the Los Angeles County Bar Assoc -iation. All rights reserved. Reproduction in whole or in partwithout permission is pro hibited. Printed by R. R. Donnelley,Liberty, MO. Member Business Publications Audit of Circula -tion (BPA).
The opinions and positions stated in signed material are those of the authors and not by the fact of publicationnecessarily those of the Association or its members. Allmanuscripts are carefully considered by the Editorial Board.Letters to the editor are subject to editing.
Los Angeles Lawyer October 2018 5
LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATIONOF THE LOS ANGELES COUNTY BAR ASSOCIATION
1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553Telephone 213.627.2727 / www.lacba.org
LACBA EXECUTIVE COMMITTEE
PresidentBRIAN S. KABATECK
President-ElectRONALD F. BROT
Senior Vice PresidentTAMILA C. JENSEN
Vice PresidentBRADLEY S. PAULEY
TreasurerWILLIAM L. WINSLOW
Vice President Of Diversity/Affiliate OutreachPHILIP H. LAM
Assistant Vice PresidentFELIX THOMAS WOO
Assistant Vice PresidentDANIEL J. BUCKLEY
Assistant Vice PresidentKRISTIN ADRIAN
Immediate Past PresidentMICHAEL E. MEYER
Barristers PresidentJESSICA GORDON
Barristers President-Elect VICTORIA MCLAUGHLIN
Executive Director/Secretary STANLEY S. BISSEY
Chief Financial & Administrative OfficerBRUCE BERRA
BOARD OF TRUSTEES
SUSAN J. BOOTHJESSE A. CRIPPSGARY A. FARWELL TANYA FORSHEITJO-ANN W. GRACEJOHN F. HARTIGANAMOS E. HARTSTONDANIEL T. HUANG RICHARD L. KELLNERJENNIFER W. LELANDEVE LOPEZMATTHEW W. MCMURTREYF. FAYE NIAANN I. PARKMICHAEL R. SOHIGIANEDWIN C. SUMMERSKENDRA THOMASKEVIN L. VICK
AFFILIATED BAR ASSOCIATIONS
BEVERLY HILLS BAR ASSOCIATION
CENTURY CITY BAR ASSOCIATION
CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES
CULVER MARINA BAR ASSOCIATION
GLENDALE BAR ASSOCIATION
IRANIAN AMERICAN LAWYERS ASSOCIATION
ITALIAN AMERICAN LAWYERS ASSOCIATION
JAPANESE AMERICAN BAR ASSOCIATION
JOHN M. LANGSTON BAR ASSOCIATION
THE LGBT BAR ASSOCIATION OF LOS ANGELES
MEXICAN AMERICAN BAR ASSOCIATION
PASADENA BAR ASSOCIATION
SAN FERNANDO VALLEY BAR ASSOCIATION
SANTA MONICA BAR ASSOCIATION
SOUTH BAY BAR ASSOCIATION
SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
6 Los Angeles Lawyer October 2018
Rena E. Kreitenberg is the 2018-19 chair of the Los Angeles Lawyer Editorial Board. She is apartner in the Los Angeles law firm of Mesisca Riley & Kreitenberg LLP where she focuses oncivil litigation and appeals, emphasizing real estate, negligence, and employment actions.
Recently, a friend in the financial services industry told me he was auditinga course on the use of a cloud-based “customer relationship platform.” Hiscompany plans to use the platform to streamline interaction between its salesstaff and potential and existing customers. The concept sounded great, butwhen he explained how it works, an alarm went off in my head.
Connectivity is the mantra of the technological age. Since Facebook launchedin 2004, some 3.58 billion people have become “connected.” Over the past10 years, that connectivity has increased by approximately 200-300 millioneach year. Connectivity gives over half of the earth’s population access to data.At the same time, information processing becomes more sophisticated. Somein the technology arena believe that within the next 20 years computers willbe able to process and evaluate data faster than a human brain. Even morefrightening, through connectivity computers will have access to the data ofevery brain on earth—every genius, every scientist, every mathematician, andevery lawyer.
What does all of this mean? My friend said the platform he was studying isdesigned to provide a more seamless interface between the workforce and cus-tomers. What I also heard is that the platform permits a transition to “robotics”and “AI”—artificial intelligence technologies—in which human employeesbecome obsolete as computers take over the heavy lifting.
If the financial services industry foresees that it will be able to replace itssales personnel with computers to provide quicker and better financial advice toits potential customers, can providing legal advice be that far behind? Ourprofession is based on analyzing facts and applicable legal authority coupledwith experience. But through connectivity, computers will have access to all ofthat information, including the experience of the best lawyers in our profession.
We are already seeing the consequences of technological advancement inthe legal arena: erosion of certain fundamental rights such as privacy, the abilityof individuals to conduct their own legal research on the Internet, and onlineaccess to court documents and other information that permit nonlawyers toundertake tasks that 10 years ago were only performed by attorneys.
What can we do to ensure that our profession does not go the way ofautomation? The solution is pretty clear, but in today’s technology-based society,not easy. The last two generations have been raised on computer interaction.The art of conversation and discussion is being replaced by “snapchats” and“Instagram stories”—nothing more than soundbites.
The formation and maintenance of interpersonal relationships is the key toavoiding a robotic world. By creating such relationships, between attorney andclient and attorney and fellow colleagues, we can offer something a computercannot—emotional “connectivity.” As the human race moves further awayfrom such contact, the very soul of not only our profession but also the uniquehuman experience is facing extinction. n
The technology era has changed the way we do busi-ness and interact with one another, and it certainlyhas made many tasks of daily life more convenient.
The flip side, though, may have an insidious impact onservice professions, including the practice of law.
8 Los Angeles Lawyer October 2018
ONE OF OUR BIGGEST CHALLENGES this yearis setting the Los Angeles County Bar Assoc -iation (LACBA) on a path to create morevalue for our members. We want membersto understand the benefits of their member-ship and we need nonmembers to want tojoin LACBA because they see real value.Lawyers no longer automatically join, andmany major firms have stopped routinelyenrolling all of their lawyers. This is the
world we live in. Like most other bar associations today, LACBAmust make itself valuable to its members and prospective membersbefore they will pay their hard-earned dollars to join.
LACBA’s 26 practice sections are one of the paths to achievingour goals. We bring real value to our members through thesections. It is also worth mentioning that the relationship betweenLACBA and its sections has been mixed. It is important to remem-ber and explain the challenges we have faced to understand theway forward.
LACBA’s membership is down. That’s not a secret. In 2000,LACBA had almost double the number of dues-paying membersthat it has today, even though the legal community in Los AngelesCounty has grown substantially.
The sections were true agents of change and a catalyst formoving LACBA forward. Several years ago, a small group ofsection leaders and section members were troubled about thefuture of LACBA. They formed a council of sections specificallyto voice their concerns. In a nutshell, and at the risk of oversim-plifying a larger problem, the council of sections was worriedthat the sections were being too controlled by LACBA’s leadershipand administration. They were being told how much they couldcharge for events, forced to contribute section profits to LACBA,and felt understaffed and underappreciated. The section leadersand council of sections demanded more accountability fromLACBA leadership.
This brief history is key to understanding the power, influence,and importance of the sections. They banded together, created avoting bloc, and elected new LACBA leadership. The sectionswere integral to the changes at LACBA and will continue to bevital to LACBA’s overall health and growth.
Unprecedented Autonomy
Today, the sections have unprecedented autonomy, enjoy financialindependence, and have the full support of the administrative staff.LACBA’s staff works hard to help the sections present networkingopportunities, educational events, and leadership meetings on aregular basis. Some, such as the Litigation Section and FamilyLaw Section, are incredibly active, while others are surprisinglyinert, for example, the Small Firm and Sole Practitioner Sectioncould accomplish a great deal more. (This would seem to present
an important opportunity for growth for LACBA because abouthalf of our members identify themselves as either sole practitionersor lawyers practicing in smaller firms).
Any lawyer can join any section, participate in section events,and grow his or her professional network. The sections also providean environment for attorneys to learn about other practice areasshould they desire a career change. Let’s be completely candid:one of the main reasons lawyers join bar associations is to developbusiness. Many sections provide the best opportunities for attorneysto learn how to build their practices and generate referrals. As afriend of mine once said, “There are many really smart, goodlawyers in Los Angeles who have no work.”
The sections also have an added benefit: camaraderie. Manyof us meet some of our best professional friends, who then becomesocial friends, through the sections and through LACBA generally.LACBA provides an opportunity for all lawyers to have that kindof fellowship and interaction.
Nine Requests
As we come to the end of 2018, the sections have been given thewell-deserved and unprecedented autonomy needed for them torun independently. LACBA is once again transparent in its opera-tions. In exchange, all the sections have to do is break even by theend of the year. In addition, I have nine requests of the sections:1) While there are many good reasons to belong to the greatsections at LACBA, section leaders and LACBA leaders need towork together this year on training programs for younger lawyersand the Barristers Section. They deserve our attention because thenature of law firms has changed. Fewer firms are willing to investin the resources to train and mentor younger attorneys becausethey know few of them will still be with their current firms in fiveyears. This is a great opportunity for LACBA to fill the gap. TheBarristers can and do provide a gateway for newer members ofLACBA. We must also give them opportunities to meet otherlawyers and find their own community.2) The sections can help us all by breaking even financially andmanaging their own finances as closely as possible. With indepen-dence comes the responsibility to work hard to be fiscally sound.3) The sections must continue to provide vibrant programs fortheir members, interesting and consistent programs that give mem-bers an opportunity to interact and network with each other. Thesections should then promote these programs to the entire legalcommunity.4) Sections need to interact with each other where appropriate to
president’s page BY BRIAN S. KABATECK
Nine Requests of LACBA’s 26 Practice Sections
The 2018-19 president of the Los Angeles County Bar Association, Brian S.Kabateck is founder and managing partner of Kabateck Brown Kellner LLP inLos Angeles where he practices in the areas of personal injury, insurancebad faith, pharmaceutical litigation, wrongful death, class action, mass torts,and disaster litigation.
provide added value for their members.They should look for programs to copro -duce and other opportunities to combineinterests. 5) Sections must present programs through-out Los Angeles County, offering a bettergeographic reach for current and prospect -ive members. For example, we are workingwith the Professional Responsibility EthicsCommittee to present free programs down-town, in the South Bay, on the Westside,and in the Valley focusing specifically on thenew Rules of Professional Conduct. Theseseminars will be free to our members.6) Last year we instituted a “bring a friend”program in which any section member couldbring a colleague who is not a section mem-ber, or even a LACBA member, to a CLEprogram. This year, we made that programfree to first-time nonmember guests.7) Sections must invest in increasing mem-bership. In exchange for near-total auton-omy, we ask in return that the sections des-ignate a small group of lawyers tasked withrebuilding membership for LACBA. Ex -plaining to nonmembers the value ofLACBA and its opportunities for expandingnetworks and developing business is nec-essary for LACBA’s growth.8) Sections must work with LACBA lead-ership to make LACBA important to younglawyers. Last year, we asked the sectionsto institute programs that offer a look intovarious practice niches and to market thoseprograms to young lawyers. Some newerand younger lawyers today may be inter-ested in developing a specialty practice theyknow little about. The next generation ofattorneys wants vibrant careers. The sectionsprovide no-cost opportunities to exploreother areas of interest.9) The sections and LACBA need to worktogether to develop a special dues structurefor retired lawyers and lawyers who havebeen longtime, consistent members ofLACBA. Together we can make LACBAaffordable to retired lawyers and free tolawyers who have spent years paying mem-bership dues to this association—a rewardfor their years of service to LACBA andthe profession. In addition, we will expandour community of senior lawyers throughopportunities for continuing education andfriendship.
Finally, I want to publically thank sectionleaders like Charles Michaels—whom Ihave known for 25 years—Nowland Hong,John Carson (like Charles, a former presidentof LACBA), and countless others who didsee the value of the sections and were earlyin identifying the problems of the past. WhileLACBA is not only about the sections, thesemembers and others like them also realizethe value the sections bring to all lawyers. n
Los Angeles Lawyer October 2018 9
10 Los Angeles Lawyer October 2018
on direct
ALLISON MARGOLIN is recognized nationallyas one of the leading attorneys in cannabislicensing and law. One of the first attorneys tospecialize in cannabis, she is widely acknowl-edged as a thought leader in the industry.Margolin is a member of NORML and participatesin various other industry-related organizations,including Americans for Safe Access andAdvocates for Healing America. She also activelyparticipates in legislative and regulatory effortsconcerning adult cannabis use in California,including regularly speaking and teaching onthese topics. Margolin is a graduate of HarvardLaw School and Col umbia University.
Allison Margolin Founder, Margolin & Lawrence
Weed, blunt, pot. What is today’s bestterm? Cannabis.
You are a part of NORML, which your father, Bruce Margolin, founded in LosAngeles in 1967. Is marijuana in yourDNA? Yes, but my calling is more to endthe drug war.
In 2004, you founded your own firm,which evolved to your current firm. Whois your typical client? Male, in his thir-ties.
Most of the lawyers in your firm went to Harvard. Yale won’t do? The Harvardalumni system makes it easy to recruitother Harvard grads, but I’d be happywith any top person.
Your current focus is on cannabis busi-ness regulation and compliance. How doyou keep up with the changing legallandscape? I make the time. The mainthing about keeping up is to makeenough money to employ a staff.
Attorney General Jeff Sessions flippedformer President Barack Obama’s execu-tive order removing marijuana as a ClassI drug. Later, President Donald Trumpflipped it back. What is going on? Thereal deal is not what the president issaying, but what is going on in thestreets and in the federal courthouses.
Dr. Sanjay Gupta, renowned neurosur-geon, wrote to Sessions outlining mari-juana’s medicinal benefits. What doesn’tSessions get? The drug war is basicallyanother Jim Crow version to oppressminorities.
Opening a dispensary requires an influxof cash. Are the communities bearing thebrunt of past laws able to share in thegains of this new industry? Cities are en-couraged to adopt social equity part-ners, and Los Angeles has done this.This will require a lot of trust building.
Why? These communities do not trust
the government.
Los Angeles City Controller Ron Galperinestimated that Los Angeles could bringin at least $50 million in cannabis-licens-ing tax revenue. Do you agree? Yes.
What is the tension between federal andCalifornia law regarding cannabis? It’scomplicated, but California’s law tech-nically violates the federal in as much asrecreational marijuana is not protectedunder federal law.
From cultivation, growers’ products arelabeled A for adult use or M for medicaluse. Are there dual licenses? As of May2018, growers are allowed to growboth.
What is the basic difference betweenmedical and adult-use cannabis? There’sno difference at all.
For medical cannabis, is a prescription required? No, a recommendation.
Is there a marijuana-equivalent test simi-lar to Breathalyzer for alcohol? No.
What are protocols employed by law enforcement? They trick people into aswab test, taking saliva from the insideof your cheek, which may show usefrom days earlier.
Yelp reviews say you’re great but expen-sive. True? Yes.
What are your typical fees to open a mar-ijuana dispensary? About $100,000 forlocal and state licensing.
Last year, the Los Angeles Daily Newsreported that California’s Department ofFood and Agriculture said 2,718 compa-nies were interested in seeking licensesin Los Angeles County. Are you prettybusy? Yes, we have about 50 licensingclients.
How do you envision the cannabis shopof the future? I am hoping that Los An-
INTERVIEW BY DEBORAH KELLY
What is the perfect day? Take my kids toschool, come into the office, plan to wina case for an innocent person, deal witha cannabis licensing matter, work on mybook, and go home to my family.
In 2002, you were admitted to the barand quickly became a marijuana expert.Why? In order to have free speech, youhave to have freedom of thought, and Ithink the First Amendment prohibits thegovernment from infringing on our abil-ity to alter our consciousness, unless it issomething that would cause harm toothers.
geles will allow for onsite consumption.If we don’t, the cannabis shop will besomething of the past, and there will bemore licensed delivery.
How far away from Amsterdam pot barsare we? Less than a year. West Holly-wood gave out eight lounge licenseswithin the last couple of months.
In November 2016, California’s Prop. 64legalized recreational cannabis for people21 and older. What else did it do? Themajor thing is that the smell of marijuanacan no longer be used for probable cause.
For recreational use, what are the limits?Any adult can have under an ounce andgrow up to six plants.
What is the most common way adultsuse cannabis. Smoke it.
Is the Bureau of Cannabis Control like theDepartment of Alcohol Beverage Control?Yes.
If you were handed $10 million tomor-row, what would you do with it? Buy anoffice building.
Why did you want to become a lawyer? Toliberate people who deserve to be free.
You have been named a Super LawyerRising Star seven times. What makes yousuper? I listen to my clients.
What is one trait you like in yourself?Ability to focus.
How do get your news? I read the LosAngeles Times, The New York Times,The Washington Post, and The WallStreet Journal.
Who is on your music play list? TaylorSwift, because of my daughter.
What was your favorite book as a child?Tess of the d’Ubervilles by ThomasHardy.
Are you writing a book? Yes, with mycoauthor, Erin Williams.
Title? “Just Dope: The Story of the DrugWar and One Woman’s Mission to Le-galize Everything.”
What do you do on a three-day weekend?Walk to La Cienega Park with my chil-dren, go to my grandmother’s house, andstop in at Champs Elysees for croissants.
What is your favorite vacation spot? TheClaremont in Berkeley.
What is your favorite meal and where? Iorder the toro at Shunji. It’s a greatplace on Pico Boulevard, near Bundy.
What is your Starbucks order? Icedlatte—two shots.
What do you make sure you have in yourbriefcase? Pen and legal pad.
If Trump and you smoked marijuana to-gether, what would you say to him? Letme be the drug czar.
Do you have your own “Golden Rule” by which you live? I try to do as much as I can to help other people, but a partof that is being conscious to preservemyself.
Which are your three favorite movies? Ilove Ronan Farrow so I don’t watchWoody Allen anymore, but Purple Roseof Cairo was a favorite. I also like Upand Coco.
Which two world leaders do you most respect? Barack Obama and Eric Holder.
What is the one thing you would like tochange in the world? End the war on humans.
Los Angeles Lawyer October 2018 11
12 Los Angeles Lawyer October 2018
SCHOOL ADMINISTRATORShave long been assigned the challengingtask of moderating the interaction of children, but their responsi-bilities historically ended at the “schoolhouse gate.”1 However, inthe age of social media, instant messaging, and smart phones,states such as California are requiring schools to extend their reachbeyond their walls and into the vast expanse of the virtual worldto help promote a safe learning environment and eliminate cyberbullying among students. The rapidly changing landscape of socialmedia has left school administrators, students, lawyers, and evenjudges struggling to keep up with the state of this unsettled areaof law. School administrators are particularlychallenged by this edict. While administratorsfeel a need to investigate and handle issuesthat may have an impact on the learningenvironment, they are reaching into the pri-vate lives of students regarding conduct thatis not related to the learning environment.
California Education Code Section 48900defines bullying as “any severe or pervasiveverbal act or conduct, including communications made in writingor by means of an electronic act….”2 If these severe or pervasiveacts cause a fear of harm, have a “substantially detrimental effecton [the student’s] physical or mental health,” or a “substantialinterference with [the student’s] academic performance,” the offend-ing student can be suspended or expelled for the actions.3
In the past, a school’s authority to police this type of conductwas generally confined to the school grounds. The rise of cyberbullying in the past decade has extended a school’s responsibilityinto the electronic world of the student, and “electronic act”includes “creation or transmission originated on or off the schoolsite by means of an electronic device.” Schools are now taskedwith the responsibility to discipline students for conduct includingtext messages, photos, and posting on a social network.4
The U. S. Supreme Court has not dealt with the issue of cyber-bullying, despite several appeals requesting the Court take on theissue. This gap in authority is leaving states to set up a potentialconflict between the well-being of some students versus the con-stitutional rights of others. This conflict is compounded by theabsence of guidance or a test for a threshold showing of “perva-siveness” that causes many to believe that offensive speech maybe protected unless it substantially interferes with a student’s edu-cational goals or performance.5
In general, a school may suspend or expel students for bullyingconduct that occurs on school grounds or at school events.6 Whathappens, however, when the alleged bullying occurs off schoolgrounds and is not related to school activities?
Public education is a fundamental right and the CaliforniaSixth District Court of Appeal has ruled that disciplinary action iscontingent upon whether the action causes a substantial disruptionto schoolwork or school activities.7 If a school suspends a student
whose actions did not cause substantial disruption, the suspensionor expulsion risks violating the free speech protections of theaggrieved student.
Federal circuits are undecided as to how far administrators canreach into students’ private lives before it has gone too far. In J.S.ex rel. Snyder v. Blue Mountain School District, a student’s Myspaceprofile was the subject of debate.8 Five members of the eight-judgemajority found that Tinker v. Des Moines Independent CommunitySchool District excludes authority to discipline or regulate off-campus speech.9 In other words, even if off-campus speech creates
a “substantial disruption,” a school district has no authority tosuspend or discipline a student for the conduct.10 Conversely, theFourth Circuit has held that some actions are so disruptive thattheir origin does not matter.11
Emerging law has suggested that speech rising to the level ofbullying is unprotected thus many states are instructing adminis-trators to undertake disciplinary measures as necessary. Schooladministrators, however, remain skeptical of overreach. Many feelthe need to investigate and handle issues that may have an impacton the learning environment. Yet, administrators risk reachinginto the private lives of students regarding conduct that is notrelated to the learning environment. Given current California law,administrators should be encouraged to address cyber bullyingwhen the conduct clearly interferes with school activities and thesafety of students. n
1 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).2 EDUC. CODE §48900(r)(1).3 Id.4 EDUC. CODE §48900(r)(2)(A).5 Saxe v. State Coll. Area Sch. Dist., 240 F. 3d 200, 217 (3rd Circ. 2001).6 EDUC. CODE §48900(s); see also Baker v. Downy City Bd. of Educ., 307 F. Supp.517, 526 (C.D. Cal. 1969).7 See Fremont Union High Sch. Dist. v. Santa Clara County Bd. of Educ., 235 Cal.App. 3d 1182, 1186-88 (6th Dist. 1991).8 J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F. 3d. 915 (3d Cir. 2011).9 Id. at 926 n.3.10 Id. at 926-27. 11 Kowalski v. Berkeley County Sch., 652 F. 3d 565 (4th Cir. 2011).
barristers tips BY BRENT J. LEHMAN
School Administrators’ Responsibility Concerning Cyber Bullying
The rise of cyber bullying in the past decade has extended a school’s
responsibility into the electronic world of the students
Brent J. Lehman is a senior associate at Olivarez Madruga Lemieux O’Neill,LLP in downtown Los Angeles. He is a trial attorney in the firm’s litigationgroup.
Los Angeles Lawyer October 2018 13
RICH
ARD
EW
ING
IN CRIMINAL CASES, the U.S. Supreme Court in Gideon v.Wainwright recognized over a half-century ago that:
The right to be heard would be, in many cases, of littleavail if it did not comprehend the right to be heard bycounsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law…. He isunfamiliar with the rules of evidence. Left without the aidof counsel he may be put on trial without a proper chargeand convicted upon incompetent evidence, or evidence irrel-evant to the issue or otherwise inadmissible. He lacks boththe skill and knowledge adequately to prepare his defense,even though he have a perfect one. He requires the guidinghand of counsel at every step in the proceedings….1
The Court went on to hold in Gideon that the Sixth Amend -ment and the due process clause required the appointment ofcounsel at public expense for indigent criminal defendants.
In civil cases, however, no such right has been recognized bythe U.S. Supreme Court,2 despite various compelling attempts.All states provide a right to counsel under state law or state con-stitutions in at least some civil areas, and the civil right to counselmovement has enjoyed some major successes. Nonetheless, theexisting rights to counsel are still quite limited. As a result, low-income employees, tenants, parents, and other litigants can andregularly do lose jobs, housing, custody of children, access tohealthcare or benefits, the ability to stay in the United States,and other vitally important legal interests in the courts, all withoutthe assistance of counsel, despite a need every bit as compellingas a misdemeanant’s for Gideon’s“guiding hand of counsel.”
Certainly Legal Aid and other nonprofit service providersoffer invaluable assistance but only to a “fortunate” few.3
According to the 2017 Justice Gap Report by the Legal ServicesCorporation, “71% of low-income households experienced atleast one civil legal problem in the last year, including problemswith health care, housing conditions, disability access, veterans’benefits, and domestic violence.”4 However, low eligibility thresh-olds and funding constraints mean that 86 percent of the legalproblems reported by families received inadequate legal help ornone at all.5 The Legal Services Corporation anticipates thatbecause of limited resources, fewer than half the potential clientswho approach legal services programs will be served in 2018.Overall, the National Center for State Courts has found that atleast three-quarters of all civil cases involve one unrepresentedparty.6 In California, it has been estimated that 80 percent offamily law litigants7 and 90 percent of tenants in eviction pro-ceedings8 are unrepresented. This access to justice crisis is reflectedin the World Justice Project’s Rule of Law Index, which ranksthe United States 94th out of 113 countries in access to andaffordability of civil justice.9
At times there have been opportunities for the Supreme Courtto extend the reasoning of Gideon to important civil cases,
perhaps even recognizing what U.S. District Judge Robert W.Sweet famously termed a “civil Gideon,”10 or a broad right tocounsel in most or all civil cases, analogous to Gideon’s commandin criminal cases. For example, nearly 20 years after Gideon,the Supreme Court decided Lassiter v. Department of SocialServices of Durham County.11 The case involved what manyadvocates thought was perhaps the most compelling case for aright to counsel in a civil case: the permanent severance by thestate of a parent’s right to maintain a legal relationship with herchild, an interest the Court had recognized as a liberty interestof the highest order. Unfortunately, bad facts can make bad law,and such was the case in Lassiter. By the time of the parentalrights proceeding, Abby Gail Lassiter’s child was in foster careand she had little contact with him. A year later she was convictedof murder and sentenced to 25 to 40 years in prison.
Although Lassiter had little hope of maintaining legal custody,she sought to have her youngest son placed with relatives insteadof strangers and to prevent permanent termination of her rela-tionship with him. However, with no lawyer, Lassiter could notconduct successful cross-examination or exclude hearsay andutterly failed to make her case in North Carolina’s trial-like pro-ceeding terminating her parental rights. Nonetheless, in a 5-4decision, the Supreme Court held that the failure to appointcounsel in the termination proceedings did not violate due processand announced a “presumption that there is a right to appointed
practice tips BY CLARE PASTORE AND JOHN POLLOCK
Into the Breach: Progress on the Right to Counsel in Civil Matters
Clare Pastore is professor of the Practice of Law at the University of SouthernCalifornia Gould School of Law and serves on the Shriver ImplementationCommittee and the Access to Justice Commission’s Right to Counsel TaskForce. John Pollock is a staff attorney at the Public Justice Center who servesas coordinator of the National Coalition for a Civil Right to Counsel.
counsel only where the indigent, if he isunsuccessful, may lose his personal free-dom.”12 The result, as Douglas Besharovfamously remarked, means that “Lassiter,for all practical purposes, stands for theproposition that a drunken driver’s nightin the cooler is a greater deprivation ofliberty than a parent’s permanent loss ofrights in a child.”13
Thirty years after Lassiter, the Courtin Turner v. Rogers considered the caseof an indigent parent who had been jail edfor civil contempt for over a year for failingto pay child support.14 While many be -lieved that Lassiter meant that at leastthose indigent litigants threatened withprison were entitled to counsel, the TurnerCourt refuted that idea. Instead, it heldthat when the civil contempt proceedingis initiated by an unrepresented privateparty (here, the other parent) rather thanthe state, and the state provides some min-imal “procedural safeguards” such as noti-fying the defendant parent that his abilityto pay would be a critical part of the con-tempt hearing, it is not required to providecounsel for the defendant parent even whenprison looms.15 While the Court suggestedthat a state-initiated civil contempt pro-ceeding might yield a different result,16
there was no question that Turner was yetanother setback in a federal constitutionalright to counsel approach.
Lassiter and Turner have led advocatesseeking an expansion of the availability ofcounsel in civil cases to turn away fromfederal court litigation. In contrast withthe failed cases in federal court, a signifi -cant number of these efforts in legislatures,local governing bodies, and administrativearenas have succeeded in expanding accessto counsel in certain types of litigation orfor certain especially vulnerable litigants.Between 2000 and 2009, seven states legis -latively expanded counsel rights in juvenileimmigration, child custody, termination ofparental rights, and abuse/neglect cases.17
In 2017 alone, 14 states passed measuresexpanding counsel or establishing pi lotprojects to do so in areas that include hous-ing, custody, dependency, guardianship,domestic violence, and criminal justicedebt.18
Recently, after studies determined thatonly 1 percent of its tenants were repre-sented in housing courts, New York Citypassed a law, Introduction 214-B, guar-anteeing legal representation to any low-income resident facing eviction, along witha $93 million increase of funding for evic-tion lawyers above the $60 million thatthe city added in 2014. The City of SanFrancisco designated itself as a “right tocounsel city” in 2012, and in 2018 enacted
via a ballot initiative a right to counsel foreviction cases regardless of income level.The City of Philadelphia appropriated$500,000 towards eviction defense afterholding hearings on whether a right tocounsel in housing cases could help preventevictions, while the District of Columbiaenacted its Expanding Access to JusticeAct in 2017 and added $4 million for evic-tion defense.
In 2007, Washington state amended itsrules of court to authorize appointment ofcounsel as a reasonable accommodationunder the Americans with Disabilities Actfor indigent litigants whose disabilitiesrequire it. This rule was then expanded in2017 to cover administrative proceedingsas well. In California, legislators approvedover $45 million in state budget funds toexpand legal services for immigrants in2017, and the state has been engaged in alarge-scale targeted experiment, created bystatute, in providing counsel in certain crit-ical areas of law for seven years.
ABA Resolution
These legislative efforts came on theheels of a 2006 resolution by the AmericanBar Association, unanimously adopted,which urged state and local jurisdictionsto recognize a right to counsel in civil casesinvolving “basic human needs” such asthose involving shelter, sustenance, safety,health or child custody.”19 Notably, neitherthe ABA resolution nor the focus of therenewed movement is a true “civil Gid e -on,” in the sense of a close analogy to thecriminal system, providing counsel for everyindigent in every case. Instead, the effortshave focused on identifying areas of basichuman need in which counsel is most im -portant, because it will make the most dif-ference and protect the most importantinterests.
On the litigation side, while the SupremeCourt’s pronouncements have dampenedenthusiasm for federal constitutional liti-gation, there have been many successesunder state constitutions. Most significantof these is the fact that more than 10 statecourts have rejected Lassiter and recognizeda categorical right to counsel for parentsin termination of parental rights proceedingsunder their state constitutions.20 Addition -ally, every state high court to rule on theissue has held that the equal protectionclause requires states to provide counsel toindigent parents in contested adoptions ifit does so in state-initiated termination ofparental rights proceedings. Moreover, in2015, Massachusetts joined New York andAlaska by establishing a right to counsel incertain custody proceedings, in this caseprivate child guardianships.21
All of these targeted efforts are backedby a considerable and growing body oflegal scholarship and research about thecosts and benefits of providing counsel.For example, a 2014 review of San Fran -cisco’s pilot program suggested that thecity could save up to $1.1 million eachyear in homeless services by helping tokeep people housed.22 A 2012 Massa chu -setts Bar Association study of a pilot projectin Quincy, Massachusetts found that two-thirds of the tenants receiving full repre-sentation were able to stay in their homes,compared with one-third of the controlgroup that received limited “lawyer-for-the-day” assistance. The represented ten-ants also received almost five times thefinancial benefits, such as damages or can-cellation of past due rent, as the controlgroup.23 A study in the domestic violencecontext found that 83 percent of repre-sented victims obtained a protective order,compared with 32 percent of those withouta lawyer.24 A meta-analysis of other impactstudies found that lawyers increased thelikelihood of winning by about 540 percenton average.25
California has been at the forefront ofseveral important efforts both in expandingcounsel and studying the effects of doingso. For example, in 2004, the CaliforniaCommission on Access to Justice establishedthe Right to Counsel Task Force, whichdrafted a “model statute” that could beused to implement a targeted right to coun-sel focused on the “basic human needs”framework in the ABA resolution.26 In2009, then-Assembly Member Mike Feuercarried, and Governor Schwarze negger,signed the Sargent Shriver Civil CounselAct, which borrowed some of the languageand framework of the model statute to cre-ate the largest pilot on civil counsel ever.To date, this program has provided over$58 million to seven legal aid programsand court partners under a competitivebidding program in a seven-county exper-iment studying the effects of increasingaccess to counsel in the areas of housing,domestic violence, conservatorships andguardianships, and child custody.
In a report to the legislature releasedin 2017,27 the California Judicial Councilfound that over the first four years of theShriver pilots almost 30,000 litigants re -ceived services in the critical areas of hous-ing, child custody, and guardianship orconservatorship. Most were women ofcolor, and their average income was justover $1,000 per month. The evaluation(conducted by NPC Research, an outsidecontractor), found that in housing, fewtenants were formally evicted and far moremoved as part of a negotiated settlement
14 Los Angeles Lawyer October 2018
than in non-Shriver baseline cases, andsettlement terms supported long-term hous-ing stability through such measures asmore time to move out, reduction of rentaldebt, and credit protection. Shriver custodycases settled far more often than compar-ison cases did, and Shriver custody orderswere more durable over two years, increas-ing family stability and decreasing thedemand on court resources. The probateproject reduced court processing case costsby 30 percent through fewer continu -ances and faster resolutions. The Shriverprojects—originally scheduled to last sixyears—were made permanent in 2016.
As a matter of international humanrights as well, the importance of the rightto counsel is achieving growing recogni -tion. In its 2014 concluding observations,the U.N. Committee on the Eliminationof Racial Discrimination (which monitorsim plementation of the Convention on theElimination of All Forms of Racial Dis -crim ination, or CERD) expressed a
concern at the lack of a generallyrecognized right to counsel in civilproceedings (para.22), which dis-proportionately affects indigent per-sons belonging to racial and ethnicminorities, and hinders their seekingan effective remedy in matters suchas evictions, foreclosures, domesticviolence, discrimination in employ-ment, termination of subsistenceincome or medical assistance, lossof child custody, and deportation.28
Moreover, the U.N. Human RightsCommittee in 2014 urged the United Statesto ensure access to counsel for both immi-grants and victims of domestic violence.29
In the Shriver Civil Counsel Act, thestate legislature adopted a remarkablystark and candid set of findings about thewoeful state of justice when millions oflitigants lack lawyers to adjudicate disputesover basic human needs, which include:
Many Californians are unable tomeaningfully access the courts andobtain justice in a timely and effec-tive manner….Critical legal decisions are madewithout the court having the neces-sary information….There are significant social and gov-ernmental fiscal costs of deprivingunrepresented parties of vital legalrights affecting basic human needs…and these costs may be avoided orreduced by providing the assistanceof counsel where parties have a rea-sonable possibility of achieving afavorable outcome….Many judicial leaders acknowledgethat the disparity in outcomes is so
great that indigent parties who lackrepresentation regularly lose casesthat they would win if they hadcounsel.30
The Shriver projects, along with re -search and results from around the nation,are showing that counsel does make a dif-ference, and the slow but steady growthof the recognition of a right to counsel incivil cases is reflective of this growingawareness. Let’s hope that just as we nowlook back to 1962 and before and thinkit barbaric that an indigent person couldbe arrested, charged, tried, convicted, sen-tenced, and imprisoned without ever seeinga lawyer, we will one day feel the sameabout the loss of basic human needs suchas housing, income, employment, and fam-ily relationships, heeding the words ofthen-New York Chief Judge JonathanLippman made a few years ago:
In March 2013, we will reach the50th anniversary of the SupremeCourt’s decision in Gideon v. Wain -wright. By then, it is my ferventhope…that it will be an obvioustruth to all that those litigants facedwith losing the roof over their heads,suffering the breakup of their fam -ilies, or having their very livelihoodthreatened cannot meaningfully pursue their rights in the courts with -out legal counsel.31 n
1 Gideon v. Wainwright, 372 U.S. 335, 345 (1963)(quoting Powell v. Alabama, 287 U.S. 45, 60 (1932)).2 The two technical exceptions are 1) In re Gault (387U.S. 1 (1967)), in which the court recognized a right tocounsel in juvenile delinquency proceedings (which arequasi-criminal but technically civil) and 2) Vitek v.Jones (445 U.S. 480 (1980)), in which the Court recog-nized that a prisoner being involuntarily transferred toa mental health facility has the right to the assistanceof a “qualified representative” (but that person doesnot have to be a lawyer).3 The shocking gap between the United States and ourpeer nations in terms of public funding for legal serviceshas been a continuing theme of the work of Justice EarlJohnson. In a recent article, Justice Johnson showedthat nations such as Germany, Ireland, Scot land, England,and Canada provide from three to twelve times as muchfunding in proportion to their GDP as the United States.See Earl Johnson, Jr., Justice for America’s Poor in theYear 2020: Some Possibilities Based on ExperiencesHere and Abroad, 58 DEPAUL L. REV. 393, 398 (2009).4 2017 Justice Gap Report, available at www.lsc.gov(last viewed Aug. 31, 2018).5 Id.6 NATIONAL CENTER FOR STATE COURTS, THE LANDSCAPE
OF CIVIL LITIGATION IN STATE COURTS (2017).7 JUDICIAL COUNCIL OF CALIFORNIA, STATEWIDE ACTION
PLAN FOR SERVING SELF-REPRESENTED LITIGANTS, at 2(2004).8 Id. at 11.9 World Justice Project Rule of Law Index 2016 Report,available at http://worldjusticeproject.org/sites/default”/files/media/wjp_rule_of_law_index_2016.pdf (lastviewed Aug. 31, 2018).10 Robert W. Sweet, Civil Gideon and Confidence in a
Just Society, 17 YALE LAW & POL. REV. 503 (1997)11 Lassiter v. Department of Soc. Servs. of DurhamCounty, 452 U.S. 18 (1981).12 Id. at 27.13 Douglas Besharov, Terminating Parental Rights: TheIndigent Parent’s Right to Counsel After Lassiter v.North Carolina,” 15 FAM. L.Q. 205, 221 (1981).14 Turner v. Rogers, 564 U.S. 431 (2011).15 Id. at 448.16 Id.17 See Laura Abel, Keeping Families Together, SavingMoney, and Other Motivations Behind New Civil Rightto Counsel Laws, 42 LOY. L.A. L. REV. 1087 (2009).18 The 2017 legislation can be found on the website ofthe National Coalition for a Civil Right to Counsel, http://civilrighttocounsel.org/legislative_developments. TheNCCRC’s interactive map (http://civilrighttocounsel.org/map) also tracks all civil right to counsel developments(litigation, legislation, etc.) (last viewed Aug. 31, 2018).19 ABA House of Delegates Resolution 112A (Aug. 7,2006), available at https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_resolution_06112.authcheckdam.pdf.18 John Pollock, The Case Against Case-By-Case: CourtsIdentifying Categorical Rights to Counsel in BasicHuman Needs Civil Cases, 61 DRAKE L.J. 763, 783(Spring 2013), available at http://civilrighttocounsel.org/uploaded_files/4/The_Case_Against_Case-by-Case__Pollock_.pdf. Since that article was published, Hawaiihas joined the ranks.21 Guardianship of V.V., 470 Mass. 590 (2015).22 San Francisco Right to Civil Counsel Pilot ProgramDocumentation Report (May 2014) at 2, available athttp://sfbos.org/sites/default/files/FileCenter/Documents/49157-San%20Francisco%20Right%20to%20Civil%20Counsel%20Pilot%20Program%20Documentation%20Report.pdf).23 Mass. Bar Ass’n, The Importance of RepresentationEviction Cases and Homelessness Prevention: A Reporton the BBA Civil Right to Counsel Housing Pilots (2012)at 8. Many of the research studies and pilot projects arediscussed in Laura K. Abel and Susan Vignola, Economicand Other Benefits Associated with the Provision ofCivil Legal Aid, 140 SEATTLE J. SOC. JUSTICE 139 (2010).24 Jane Murphy, Engaging with the State: The GrowingReliance on Lawyers and Judges to Protect BatteredWomen, 11 AM. U. J. GENDER SOC. POL’Y & L. 499,511-12 (2003).25 Rebecca Sandefur, Elements of Professional Expertise:Understanding Relational and Substantive Expertisethrough Lawyers’ Impact, 80(5) AM. SOC. REV. 5, 909(Oct. 2015). 26 The model statute is described in detail in ClarePastore, California’s Model Statute Task Force, 40CLEARINGHOUSE REVIEW 176 (2006).27 Evaluation of the Sargent Shriver Civil Right toCounsel Act (AB 590) (July 27, 2017), available at http://www.courts.ca.gov./documents/lr-2017-JC-Shriver-civil-right-to-counsel.pdf.28 Committee on the Elimination of Racial DiscriminationConcluding Observations on the Combined Seventh toNinth Periodic Reports of United States of America (Aug.29, 2014), available at http://www.ushrnetwork.org/sites/ushrnetwork.org/files/cerd_concluding_observations2014.pdf.29 U.N. Human Rights Committee, Concluding obser-vations on the fourth report of the United States ofAmerica (2014).30 The findings appear in the uncodified portion of thestatute, available at the official California LegislativeInformation site: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml.?bill_id=200920100AB590. 31 Jonathan Lippman, Law in the 21st Century: EnduringTraditions, Emerging Challenges (May 3, 2010), availableat https://www.nycourts.gov/whatsnew/pdf/Law%20Day%202010.pdf.
Los Angeles Lawyer October 2018 15
16 Los Angeles Lawyer October 2018
MIC
HA
EL C
ALL
AW
AY
who has glanced at the news or spentmore than a microsecond on the
Internet recently probably has noticed more than one sensation-alized story about the increase in struggles of airline passengerstraveling with their emotional support animal companions. Forinstance, in January, one airline denied boarding to a passengerand her “emotional support peacock.”1 Then, just a month later,another refused to board a young passenger and her “emotionalsupport hamster.”2 The latter passenger decided that rather thanmiss her flight, she would have to dispose of the hamster, named“Pebbles,” down the nearest airport toilet, allegedly at the sug-gestion of a helpful airline employee.
Airlines and other service businesses are now forced to grapplewith the laws and regulations surrounding disability accommo-dations and emotional support service animals, yet the accepteddefinitions and standards for compliance are currently somewhatunclear and confusing to the public. Exactly what right does a
person have to bring a service dog, other “support” animal, orsimply a pampered pet onto a plane or a train, or into a taxi?May a hotel ban paws on the premises altogether? May a residentiallandlord enforce lease provisions barring support animals ofevery kind? Can an employer prevent an employee from bringinga support animal to the office, and what if other employees areallergic or have a debilitating fear of that particular type ofanimal? And what difference is there between a “service animal”and an “emotional support animal” anyway? The answer tothese questions is: “It depends.”
What is a “Service Animal”?
Earlier this year in the probate division of Ventura County SuperiorCourt, I witnessed an issue brought before the court regardingan application for a protective order because a party to a lawsuitwanted to bring her “service animal” with her to a deposition,and the opposing counsel denied that request. The animal in
KC Marie Knox is a trust and estates attorney at Hymes, Schreiber & Knox in Woodland Hills, California.
Peacocks on aPLANE
What right does a person have to bring a service dog,support peacock, or pampered pet on a plane, a train, or intoa taxi? The answer is: "It depends."
ANYONE
by KC MARIE KNOX
question was the witness’s pet goat, whichtraveled with her everywhere. There wereeven doctors’ declarations that confirmedthe owner used the goat for therapeuticreasons and that it would be detrimentalto the owner’s health to have to sit througha deposition without the goat present.Ultimately, the court determined that agoat did not fall within the definition of“service animal” and denied the application.
Under Titles II and III of the Americanswith Disabilities Act (ADA), a “service ani-mal” is any dog that is individually trainedto do work or perform tasks for the benefitof a person with a disability, whether phys-ical or mental, and the work or task thatthe dog performs must be directly relatedto the person’s disability.3 Apologies to catand hamster lovers—it’s a dog’s world,except, that is, for miniature horses. That’sright, miniature horses are the sole excep-tion to the “dogs only” rule. The criticalelement of qualifying as a service animalunder the ADA is that the dog (or miniaturehorse) must be specifically trained to do aspecific task for the specific individual’sdisability. Some examples of different sup-port dogs as identified by the ADA4 are:• Guide Dogs or Seeing Eye Dogs. Theseanimals are specifically trained to travelwith and guide individuals with severevision impairments or are blind.• Hearing or Signal Dogs. These animalsare specifically trained to alert a personwho has severe hearing loss or cannot hearvarious noises (such as a ringing telephoneor a knock on the door).• Psychiatric Service Dogs. These animalsare specifically trained to interact withindividuals during specific psychiatricepisodes to perform tasks such as “sweep-ing” a room before an individual entersas a safety check, turning on lights for indi-viduals suffering from post-traumatic stressdisorder (PTSD), protecting an individualfrom self-harm during a dissociative episodeor disorientation, and reminding an indi-vidual to take medications on a scheduleor when needed.• Seizure Response Dogs. These animalswill protect the individual during a seizureor go for help, depending on the severityof the seizure. A few have also been trainedto predict when a seizure may occur andtake the individual to a safe location.• Sensory Signal Dogs. These animals arespecific to those who are diagnosed withautism.
As with federal law, California CivilCode Section 54.1 includes definitions for“guide dog,” “signal dog,” and “servicedog.” The definitions for “guide dog” and“signal dog” are really just species of theterm “service dog,” which the provision
defines as a dog individually trained to therequirements of a person with a disability,such as pulling a wheelchair, fetchingdropped items, or alerting someone whois hard of hearing to the presence of intrud-ers or some hazard.5 (California law makesno specific provisions for service miniaturehorses, but since federal law is supreme,the rules regarding mini-horses also shouldapply in California).
A dog may be trained to meet otherrequirements, such as providing emotionalsupport, but that does not qualify the dogas a service animal. While dogs have beentrained to provide companionship to theirowners through eons of specific breedingand the steady accumulation of uncon-scious cues from their owners, these com-panionship skills are not enough to allowfor additional accommodations to theirowners. The ADA states that the “provisionof emotional support, well-being, comfort,or companionship” does not constitutework or tasks for the purposes of the law.6
Thus, a dog lacking specific training toperform tasks related to its master’s dis-ability is not a service animal.
Take Honey, the hypothetical Husky.Honey is the sweetest, gentlest, quietest,best-behaved lapdog in the world—a ver-itable living plush toy—who regularly visitspatients as an emotional support dog in ahospital and who gives solace to her owner,who suffers from PTSD. Honey is never-theless not a service animal because shehas not been trained to perform at leastone specific task related to her owner’sPTSD. Change those facts just slightly; ifHoney were to be trained to wake herowner from night terrors or nightmaresor to create space around her owner incrowded areas in a nonaggressive manneror to bring her owner medication on com-mand, or when alerted to do so by a timer,Honey could legally be deemed a serviceanimal.
Under current law, only a dog (or minia-ture horse) specially trained to assist itsowner’s specific mental or physical disabilityqualifies as a service animal in California.Emotional support animals and highlytrained animals other than dogs and minia-ture horses do not qualify. Yet anyone canbuy a dog vest with lettering along the sideproclaiming it to be a “service animal.”Thus, business owners have be come skep-tical about the credibility and authenticityof such vests. A business owner wishingto verify that a dog brought onto his orher premises is in fact a service animal islimited in the ability to query the owner.Only two questions may be asked whenan animal enters place of public accom-modation: 1) Is the animal required because
of a disability? and 2) What task has theanimal been specifically trained to per-form?
These questions should not be asked ifthe training is obvious (for instance, a guidedog leading its owner). Under no circum-stances is documentation or written proofof certification or training required. Inaddition, no additional fee may be chargedfor the animal (even if the place of businesstypically charges additional fees for othertypes of animals).
Employers wishing to inquire will notfind clarification in regulations of the EqualEmployment Opportunity Commission(EEOC) because that agency has no specificregulations concerning service animals.Instead, the EEOC enforces Title I of theADA. Therefore, an employer may ask forand receive additional information con-cerning the individual and the service ani-mal, including a detailed description of theperson’s disability and the specific trainingthe dog has received to assist with that dis-ability (and more specifically how thatassistance will help the employee performhis or her job responsibilities).
Additional Questions
Airlines are cognizant of the fact of thecommon fear of flying, confined spaces,crowds—all things that passengers mustface when choosing air travel. In response,the Air Carrier Access Act gives airlinesthe option to make accommodations forthose traveling with emotional supportanimals. However, under this circumstance,airlines are allowed to ask for additionalinformation beyond the two restricted ques-tions allowed for under the ADA.
Passengers wishing to bring emotionalsupport animals on a plane should expectto be asked to show the following: Currentdocumentation—not more than one yearold—on letterhead from a licensed mentalhealth professional stating: 1) the passengerhas a mental health-related disability listedin the Diagnostic and Statistical Manualof Mental Disorders, 2) the animal accom-panying the passenger is necessary to thepassenger’s mental health or treatment, 3)the individual providing the assessment ofthe passenger is a licensed mental healthprofessional and the passenger is under hisor her professional care, and 4) the dateand type of the mental health professional’slicense and the state or other jurisdictionin which it was issued.7 The airline thenhas the discretion to determine on a case-by-case basis as to whether the animalshould be (or can be) allowed in the cabinwith the passenger.
Effective July 1, 2018, American Airlinesupdated its policy concerning service and
18 Los Angeles Lawyer October 2018
emotional support animals.8 Part of therevised policy contained a detailed list ofanimals it would not accept as an emotionalsupport animal (mainly because they werenot or could not be trained). The list in -cluded amphibians, ferrets, goats, hedge-hogs, insects, reptiles, rodents, snakes, spi-ders, sugar gliders, non-household birds,animals with tusks, horns, or hooves, and
any animal that is unclean or has an odor.American Airlines explained in their state-ment that they had seen a 40 percentincrease in customers who were transport-ing a service or support animal onboardtheir aircrafts from 2016 to 2017 andneeded to update their policy to accom-modate these customers while protectingtheir other customers from disruptive oruntrained animals.9 Industry group Airlinesfor America has reported that U.S. Airlinesoverall experienced an 80 percent increasein customers traveling with an emotionalsupport animal between 2016 and 2017.10
Surprisingly, carved out from the exclu-sions list were “miniature horses properlytrained as service animals.”11 These minia-ture horses are allowed under the ADAand airlines regulations because they aremost often only the size of a large dog andare better suited for those who are allergicto dogs. These miniature horses are specif-ically trained to be used as guides for theblind, can pull wheelchairs, and providestability for those with balance issues.
Southwest Airlines is the latest to followsuit in publishing a specific list of restrictedanimals that can be allowed within thecabin of a plan. Their new restrictions gointo effect on September 17, 2018 and
limit each passenger to one emotional sup-port animal, which can either be a dog,cat, or miniature horse, which must be ona leash or in a carrier.12 All airlines arestill requiring a current letter from a doctoror licensed mental health professional.
Where may people take their serviceanimals? The quick answer is almost any-where. Under the ADA and California law,
disabled people are entitled to “full andequal access,” as any other member of thegeneral public, to all the places that mem-bers of the general public are allowed togo.13 The ADA gives the same rights toservice animals; if a person has a legal rightto be somewhere, the service animal comesalong, too.
In addition to the allowance of serviceanimals in an educational setting underthe ADA, the Individuals with DisabilitiesEducation Act14 and Section 504 of theRehabilitation Act allow a student to usean animal that falls outside the definitionproscribed by the ADA if that animal isspecifically approved as part of the student’sIndividual Education Plan.15
Of course, there are other considerationsand rules, as well as limitations, on serviceanimals’ rights of access based on healthand safety. To cite the most common ex -ample, the service animal must always beunder its owner’s control—unruly orpoorly trained service animals lose theirright of access and may get themselvesand their owners booted from the prem -ises. Likewise, service animals may berestricted from entering places in whichtheir presence would fundamentally dis-rupt the services or activities provided in
those places—service dogs may be barredfrom entering areas of a zoo in whichtheir natural predators or prey are on display and may be made agitated oraggressive by the dog’s presence, for ex -ample. But, generally speaking, disabledpeople who make use of a service animalmay rest assured that they may bring theirservice animals anywhere they themselvesare welcome. Likewise, hoteliers, shop-keepers, and airline employees may takecomfort in knowing that service animalsmust be accommodated but any other ani-mals need not—for now.16
What about keeping service animals inan apartment with a “no pets” rule? Thereare different rules depending on if therented unit is privately owned or one thatis subsidized by the federal government.For private rentals in California, disabledpersons have the right to be accompaniedby a service animal in the property theyrent regardless of any other restrictions onkeeping pets in the building, and withouthaving to pay any additional pet chargeor security deposit.17
For federal property in California (oranywhere else in the United States), therules are different. Along with the ADA,the Fair Housing Act (FHA), the regula-tions issued by the U.S. Department ofHousing and Urban Development and theU.S. Department of Justice (DOJ) all gov-ern the rights of individuals living in fed-erally subsidized housing or accessing fed-eral property. Some of these rules overlap,some dovetail, and some create uniqueexceptions that override other rules. Asexpected, the net effect is the creation ofa complicated web of highly specific rulesdepending on the class of person (e.g., adisabled person or animal trainer), animal(service animal or emotional support ani-mal) and place (public housing or federalproperty).
When it comes to federally subsidizedhousing, the rules, while complicated, aremore expansive than the narrow defini-tions and rights granted by the ADA andCalifornia law. Crucially, the FHA requiresthat federally subsidized housing provid -ers make “reasonable accommodations”in their rules, policies, practices, or servicesto afford disabled people the opportunityto use and enjoy a dwelling.18 In the lastdecade, DOJ regulations have also ac -knowledged that, in the context of resi-dential housing, there may be compellingreasons to permit emotional support ani-mals.19 Federal courts have been calledupon to interpret these regulations manytimes in the last two or three decades,and in many decisions these courts haverecognized, on a case-by-case basis, the
Los Angeles Lawyer October 2018 19
right to keep emotional support animalsin federal housing.20
Where is the Law Headed?
There are two separate and conflictingpublic policies battling each other in thedebate concerning service and emotionalsupport animals. On the one hand, every-one should be afforded the opportunityto enjoy public places without the restric-tions of their individualized disability andhaving a service animal allows for thatenjoyment. On the other hand, businessowners and other members of the publicshould be afforded the opportunity torestrict access by animals that may be por-
trayed as service animals, but in fact haveno specific training. Unfortunately, becauseof the restrictions of what questions maybe asked to prove that an animal is trulya service animal, it is all too easy to takeadvantage of the situation.
In response to the concerns of businessowners, states such as Arizona have passedlegislation making it illegal to misrepre -sent a pet as a service animal.21 The finefor mis representation is up to $250 perviolation. California’s law is much moresevere, imposing a fine of up to $1,000per violation and a possibility of up to sixmonths in jail.22 There are approximately19 states that have enacted legislation con-
cerning fraud.23 The issue, however, is inenforcement. If a business owner is limitedto the two questions under the ADA, howcan fraud ever really be detected? That isfor future legislation. n
1 Daniela Silva, Emotional support peacock deniedflight by United Airlines, NBC NEWS, Jan. 30, 2018,https://www.nbcnews.com/storyline/airplane-mode/emotional-support-peacock-denied-flight-united-airlines-n842971.2 Daniella Silva and Anthony Cusumano, Hamsterflushed down toilet after college student’s pet deniedflight on Spirit Airlines, NBC NEWS, Feb.8, 2018,https://www.nbcnews.com/storyline/airplane-mode/hamster-flushed-down-toilet-after-college-student-s-pet-denied-n846116.3 28 C.F.R. §35.104.4 Service Animals and Emotional Support Animals:Where are they allowed and under what conditions?,ADA Nat’l Network, https://adata.org/publication/service-animals-booklet (last accessed Aug. 4, 2018).5 CIV. CODE §54.1(C).6 28 C.F.R. §35.104.7 14 C.F.R. §382.117(e).8 Traveling with pets, American Airlines, https://www.aa.com/i18n/travel-info/special-assistance/service-animals.jsp (last accessed Aug. 29, 2018) [hereinafterTraveling with pets].9 Tim Marcin, American Airlines Changes EmotionalSupport Animal Policy, But Mini Horses Can Still Fly,NEWSWEEK, May 14, 2018, available at https://www.newsweek.com/american-airlines-changes-emotional-support-animal-policy-mini-horses-can-925744 (lastaccessed Aug. 29, 2018).10 Kate Gibson, Southwest Airlines bans exotic emo-tional support animals, Moneywatch, Aug. 15, 2018,https://www.cbsnews.com/news/southwest-airlines-bans-exotic-emotional-support-animals (last accessedAug. 29, 2018).11 Traveling with pets, supra note 8; see also 28 C.F.R.§35.136(i).12 Advance notice of disability, Customers with Dis -abil i ties, Southwest Airlines, https://www.southwest.com/html/customer-service/unique-travel-needs/customers-with-disabilities-pol.html#unique_travel_needs_allergies_disabilities_pol_tab_list_tab_10 (lastaccessed Aug. 29, 2018).13 Under California law, this rule also applies to thosewho train or handle service animals.14 Individuals with Disabilities Education Act, Pub.L. 101-476, 104 Stat. 1142 (1990).15 Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947 (E.D. Cal. 1990).16 Federal regulations concerning hotels and other short-term rentals appear to be trending, on a case-by-casebasis, towards granting emotional support animalsrights of access to these public accommodations.17 CIV. CODE §§54.2(a), 54.2(b).18 4 C.F.R. §5.303.19 Guidance on permissible service animals, 73 Fed.Reg. 34516.20 See, e.g., Janhus v. Charities Hous. Dev. Corp., 169F. Supp. 2d 1133 (ND Cal. 2000)); Majors v. HousingAuth. of the County of DeKalb, Georgia, 652 F. 2d454 (5th Cir. 1981)); Bronk v. Ineichen, 54 F. 3d 425(7th Cir. 1995)).21 ARIZ. REV. STAT. ANN. §11-1024.22 PENAL CODE §365.7.23 Michael Ollove, Several states crack down “fake”service animals, USA TODAY, Oct. 29, 2017, availableat https://www.usatoday.com/story/news/2017/10/29/several-states-crack-down-fake-service-animals/807676001.
20 Los Angeles Lawyer October 2018
22 Los Angeles Lawyer October 2018
KEN
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In Sargon Enterprises Inc. v. University of Southern California,the California Supreme Court clarified the standard that governsthe admissibility of expert opinion testimony under CaliforniaEvidence Code Sections 801(b) and 802.1 Following that decision,however, a conflict developed in the law governing the admissi-bility of expert opinion evidence offered in opposition to amotion for summary judg ment.
For decades, courts in California had applied the rule that aparty’s evidence in opposition to a summary judgment motionmust be liberally construed when assessing its sufficiency tocreate a triable issue of fact. However, in Garrett v. HowmedicaOsteonics Corporation, Division Three of the Second AppellateDistrict held that this rule of liberal construction also applieswhen assessing the admissibility of an opposing party’s expertopinion evidence.2 In so holding, the Garrett court effectivelyimposed a relaxed admissibility standard that is at odds with
the standard described in Sargon. Moreover, Garrett also createda conflict with an earlier decision in Bozzi v. Nordstrom, Inc.,in which Division Eight of the Second Appellate District heldthat the rule of liberal construction applies only to sufficiencydeterminations, not threshold admissibility determinations.3
The supreme court has not yet resolved this conflict.Given the extensive use of expert declarations in California
summary judgment practice, it is important to examine the pur-ported basis for the Garrett rule. The law as it existed beforeGarrett did not directly support the court’s decision to extendthe rule of liberal construction to admissibility determinationsin the summary judgment context. Moreover, two recent admis-sibility decisions—Perry v. Bakewell Hawthorne4 and Apple Inc.v. Superior Court5—cast additional doubt on the Garrett rule.
A party moving for summary judgment should be aware ofthe conflict between Garrett and Bozzi. When presented with
Peter L. Choate is a partner and William H. Dance is counsel in the trial group at Tucker Ellis LLP in Los Angeles.
EXPERTSLIBERALLY CONSTRUED
The Garrett v. Howmedica decision laid open an exception to the Sargon
opinion, which held that trial courts have a “gatekeeping” responsibility
to exclude speculative and unreliable expert opinion testimony
BY PETER L. CHOATE and WILLIAM H. DANCE
an argument that the trial court shouldapply a relaxed standard of admissibilitypursuant to Garrett, the moving party ata minimum should seek to preserve theissue for appeal. Moreover, there are otherpractical steps that a moving party maytake.
Sargon Clarifies Admissibilty
Sargon arose from a dispute over damagespurportedly suffered by a dental companyfollowing the University of SouthernCalifornia’s alleged breach of a contractto conduct a clinical study of the company’snew implant device. Even though the com-pany was small and had annual profitspeaking at only slightly over $100,000,the company’s damages expert opined thathad the university fulfilled its obligation,the company would have become a world-wide market leader within 10 years, even-tually earning profits ranging from $220million to $1.2 billion. The CaliforniaSupreme Court held that the trial courtproperly excluded the expert’s lost profitstestimony as speculative, given that theexpert’s damages projections bore no rela-tionship to the company’s actual profitsand were not based on data from similarlysized and situated companies.6
Before the supreme court decidedSargon, there was confusion in Californialaw concerning the extent to which a trialcourt could assess the foundation of expertopinion testimony. California EvidenceCode Section 801(b) requires that an expertopinion be based on matter “of a type thatreasonably may be relied upon by an expertin forming an opinion upon the subject towhich his testimony relates.” But the courtsof appeal did not agree on what this pro-vision meant.
For example, in Roberti v. Andy Ter -mite & Pest Control, Division Four of theSecond Appellate District suggested thatit is improper under Section 801(b) for atrial court to evaluate the information thatforms the basis for an expert’s opinion asa threshold to admitting that opinion.7 Bycontrast, in Lockheed Litigation Cases,Division Three of the same appellate districtconstrued Section 801(b) to mean that atrial court must evaluate whether the infor-mation relied on provides an adequatefoundation for the expert’s opinion.8
In deciding Sargon, the CaliforniaSupreme Court resolved the conflict in theappellate courts’ interpretation of Section801(b). In affirming the trial court’s exclu-sion of the plaintiff’s damages expert, thesupreme court explicitly embraced the rea-soning in Lock heed Litiga tion Cases, effec-tively rejected the reasoning in Roberti,and confirmed that trial courts have a
“substantial ‘gatekeeping’ responsibility”under Section 801(b) to exclude specula -tive and unreliable expert opinion testi-mony.9 According to the supreme court,the trial court had correctly interpretedSection 801(b) to mean that “‘the matterrelied on must provide a reasonable basisfor the particular opinion offered, andthat an expert opinion based on specula-tion or conjecture is inadmissible.’”10
Significantly, the supreme court heldthat a trial court’s gatekeeping obliga -tion derives not only from Section 801(b)but also from Section 802. Section 802provides that an expert may state “thereasons for his opinion and the matter…upon which it is based, unless he is pre-cluded by law from using such reasonsor matter as a basis for his opinion.”Section 802 also provides that the court“may require that a witness before testi-fying in the form of an opinion be firstexamined concerning the matter uponwhich his opinion is based.”11 The Sargoncourt construed Section 802 to mean thattrial courts may look beyond the typesof matter on which an expert relies, assesswhether an expert’s stated reasons supporthis or her opinion, and create and applyjudge-made law restricting the reasonsfor an expert’s opinion.12
Although Sargon involved the admissi-bility of expert testimony at trial, thesupreme court’s discussion of Sections801(b) and 802 was not limited to thatcontext. On the contrary, the court de -scribed the “applicable legal principles”that apply whenever a lower court exercisesits discretion to admit or exclude expertopinion evidence.13 In discussing these prin-ciples, the court relied extensively on casesinvolving admissibility decisions made inthe summary judgment context,14 includingthe court of appeal’s decision in LockheedLitigation Cases and the U.S. SupremeCourt’s seminal decisions in Daubert v.Merrell Dow Pharmaceuticals, Inc.,15
General Electric Company v. Joiner,16 andKumho Tire Company v. Carmichael.17
By relying on these summary judgmentcases, the court made plain that its inter-pretation of Sections 801(b) and 802 applieswhenever a party seeks to admit expertopinion evidence, regardless of the proce-dural context.18
Garrett Creates an Exception
Less than four months after the CaliforniaSupreme Court decided Sargon, the SecondAppellate District decided Garrett. TheGarrett court effectively created an excep-tion to Sargon by imposing a relaxed stan-dard of admissibility on declarations sub-mitted in opposition to summary judgment
motions. Garrett still remains the onlypublished decision following Sargon toexplicitly hold that the rule of liberal con-struction applies to threshold admissibilitydeterminations.
The plaintiff in Garrett alleged that hewas injured following the fracture of afemoral prosthetic implant. At issue onappeal was whether the trial court erredin granting summary judgment for thedefendant after excluding a declarationsubmitted by the plaintiff’s metallurgistexpert. In that declaration, the expert statedthat he had conducted “extensive exami-nations” of the prosthesis and concludedthat the fractured portion of the device wassofter than the “minimum required hard-ness” in two of three specifications of theAmerican Society for Testing and Mat erials(ASTM) and less than the “expected hard-ness” in the third specification.19 Theexpert, however, failed to describe the par-ticular testing processes that he used, tomore particularly describe the results ofthat testing, and to identify the ASTM spec-ifications that he had considered.
On appeal, the defendant argued thatthe trial court properly excluded theexpert’s declaration because these omis-sions made it impossible to determinewhether the material on which the expertrelied supported his opinion, as requiredby Sargon. The court of appeal rejectedthis argument and emphasized why, in itsview, Sargon was distinguishable. Speci -fically, the court explained that “Sargoninvolved the exclusion of expert testimonyat trial” following a multi-day evidentiaryhearing pursuant to Evidence Code Sec -tion 802.20 The court then explained that“[u]nlike Sargon,” Garrett involved theexclusion of expert testimony presentedin opposition to a summary judgmentmotion without a Section 802 evidentiaryhearing.21
After distinguishing Sargon, the courtcited Jennifer C. v. Los Angeles UnifiedSchool District,22 and Powell v. Klein -man,23 as support for its conclusion thatthe rule of liberal construction “applies in ruling on both the admissibility of ex -pert testimony” submitted in oppositionto a motion for summary judgment “andits sufficiency to create a triable issue offact.”24 Relying on these two cases, thecourt then explained that “a reasonedexplanation required in an expert decla-ration filed in opposition to a summaryjudgment motion need not be as detailedor extensive as that required in expert tes-timony presented in support of a summaryjudgment motion or at trial.”25 Ultimately,the court applied the rule of liberal con-struction to hold that the expert’s decla-
24 Los Angeles Lawyer October 2018
ration was admissible even though the trialcourt “could not scrutinize the reasons for[his] opinion to the same extent as did thetrial court in Sargon.”26
Conflicts with Bozzi
In holding that the rule of liberal con-struction applies to admissibility determi-nations, Garrett created a conflict withBozzi. The plaintiff in Bozzi sued a depart-ment store and an escalator manufacturerfor personal injuries sustained when anescalator stopped as a result of a poweroutage. The issue on appeal was whetherthe trial court erred in granting summaryjudgment for the defendants after excludinga declaration of the plaintiff’s engineeringexpert. The trial court had held that theexpert’s opinions were inadmissible becausethey lacked any factual foundation andwere conclusory and speculative.27
The court of appeal affirmed. It beganits analysis by observing that “[t]he samerules of evidence that apply at trial alsoapply to the declarations submitted in sup-port of and in opposition to motions forsummary judgment.”28 After acknowledg-ing the rule of liberal construction, thecourt confirmed that this rule “does notmean that courts may relax the rules ofevidence in determining the admissibilityof an opposing declaration.”29 As the courtemphasized, “only admissible evidence isliberally construed in deciding whetherthere is a triable issue.”30
Garrett Reexamined
The conflict between Garrett and Bozzihas been emphasized in two petitions forreview to the supreme court.31 The court,however, has not yet resolved that conflict.Accordingly, there is value in reexaminingthe purported basis for the Garrett court’sruling.
The court in Garrett relied on twocases—Jennifer C. v. Los Angeles UnifiedSchool District and Powell v. Kleinman—for the proposition that a trial court shouldapply the rule of liberal construction whenassessing the admissibility of an opposingparty’s expert opinion evidence. Never -theless, neither case directly supports thatproposition.
Jennifer C. involved a claim for negli-gent supervision filed against a school dis-trict by a student who was sexually assault -ed at school. The issue on appeal waswhether the trial court erred in grantingsummary judgment for the defendant afterexcluding the declaration of the plaintiff’sexpert on school safety and supervision.The trial court excluded the declarationbecause the plaintiff’s expert was not qual-ified, and it also found that the expert’s
opinions concerning the standard of carewere conclusory and therefore insufficientto raise a triable issue of fact.32
The court of appeal reversed. Signi -ficantly, the court did not apply or evenmention the rule of liberal constructionwhen reviewing the trial court’s qualifica-tions-based admissibility ruling.33 Instead,the court referenced the rule only “[i]nconsidering whether [the expert’s] opinionswere sufficient to raise triable issues offact.”34 Moreover, the court cited Powellnot for the proposition that the rule ofliberal construction applies to admissibilitydeterminations but rather for the propo-sition that the rule applies to sufficiencydeterminations.35
Powell was a medical malpractice casearising from damages sustained when thedefendants failed to promptly diagnoseand treat an injury to the plaintiff’s spinalcord. At issue on appeal was whether thetrial court properly granted summary judg-ment for the defendants after excludingthe declaration of the plaintiff’s expert onthe grounds that his opinions were basedon unfounded assumptions and flawedreasoning.36
As in Jennifer C., the court of appealreversed. At the outset, the court suggestedthat it intended to conduct an admissibilityanalysis.37 However, the court sidesteppedthe issue of admissibility and conducted asufficiency analysis instead.38 The courtbegan that analysis by taking “guidancefrom cases analyzing the sufficiency ofmedical experts’ summary judgment dec-larations.”39 After considering several suchcases, the court reaffirmed the rule ofliberal construction.40 The court thenapplied that rule and concluded that theexpert’s declaration created “triable issuesof fact which preclude summary judg-ment.”41 Having found triable issues offact, the court reversed the trial court’sjudgment without explicitly addressing thethreshold issue of whether the expert’sopinions were admissible.42 The courttherefore appears to have assumed thatbecause the expert’s opinions created triableissues of fact, those opinions necessarilywere admissible in the first instance.
In short, while both Jennifer C. andPowell involved a challenge to a trial court’sexclusion of an expert declaration submit-ted in opposition to a summary judgmentmotion, the court of appeal in each caseapplied the rule of liberal construction inthe context of a sufficiency analysis, notan admissibility analysis. Thus, neitherJennifer C. nor Powell directly supportsthe proposition that the rule of liberal con-struction should apply to admissibilitydeterminations. At most, these cases exem-
plify the tendency of some courts to con-flate the distinct concepts of admissibil -ity and sufficiency—or as one court putit, they “show a confusion in the mindsof some courts between the admissibilityof a circumstance in evidence and itsweight when admitted.”43 But admissibilityand sufficiency are not the same. As theCalifornia Supreme Court explained nearly150 years ago in Yates v. Smith, “[t]hequestion of the admissibility of evidenceis quite different from the question of itsvalue, weight or effect.”44
In holding that the rule of liberal con-struction applies to admissibility determi-nations, the Garrett court therefore appearsto have read Jennifer C. and Powell toobroadly. The court also does not appearto have considered the history and purposeof the rule or the impact of legislativeamendments to the Code of Civil Procedure.
Eagle Oil
The rule that a trial court must liberallyconstrue the evidence submitted in oppo-sition to a summary judgment motionwas announced more than 70 years agoin Eagle Oil & Refining Co. v. B.H. Pren -tice.45 By explaining that “[t]he issue tobe determined…is whether or not” theparty opposing summary judgment “haspresented any facts which give rise to atriable issue,” the Eagle Oil court con-firmed that the rule as conceived ap pliedto sufficiency determinations, not admis-sibility determinations.46 In fact, when thecourt announced the rule, there was nostrict requirement that a declaration oppos-ing summary judgment be based only onadmissible evidence.47 It was not until the1973 amendments to the Code of CivilProcedure that the legislature first requiredthat declarations offered in opposition tosummary judgment be based on admissibleevidence.48
Moreover, when it imported the ruleof liberal construction into California law,the Eagle Oil court viewed summary judg-ment as a “drastic” procedure that “shouldbe used with caution.”49 That view, how-ever, changed in 1992 and 1993, when thelegislature amended the Code of Civil Pro -cedure to bring California summary judg-ment law “closer” to its federal counterpartand thereby “liberalize” the granting ofsummary judgment motions.50 Therefore,when the court decided Garrett, summaryjudgment was understood to be “a par-ticularly suitable means to test the suffi-ciency” of the plaintiff’s case.51 Imposinga relaxed admissibility standard on a dec-laration submitted in opposition to amotion for summary judgment is incon-sistent with the legislature’s intent that
26 Los Angeles Lawyer October 2018
trial courts should grant such motionsmore readily.
In addition, applying a rule of liberalconstruction to admissibility determinationsis complicated by Evidence Code Section300, which provides that the code “appliesin every action” except as otherwise pro-vided by statute. According to the LawRevision Commission Comments, Section300 “makes the Evidence Code applicableto all proceedings conducted by Californiacourts except those court proceedings towhich it is made inapplicable by statute.”52
As one court noted, “the Law RevisionComment to Section 300 resolves any con-ceivable ambiguity in the statutory lan-guage.”53 By operation of Section 300,therefore, Sections 801(b) and 802—asinterpreted by Sargon—apply with as muchforce at summary judgment as at trial.Moreover, Civil Procedure Code Section437c(d) states that declarations supportingand opposing summary judgment “shallset forth admissible evidence.” Neitherthat provision nor any other statute permitsa trial court to “liberally” construe a dec-laration for admissibility purposes.
Perry and Apple Considered
The supreme court’s decision in Perry andthe court of appeal’s decision in Applenow cast additional doubt on whether, fol-lowing Sargon, it is appropriate to applythe rule of liberal construction when assess-ing the admissibility of a declaration sub-mitted in opposition to a motion for sum-mary judgment.
The issue in Perry was whether the trialcourt had erred in granting summary judg-ment for the defendant after refusing toconsider the declaration of a plaintiff’sexpert who had not been timely desig-nated. On appeal to the supreme court,the plaintiff relied on Kennedy v. ModestoCity Hospital.54 Unlike the court of appealin Perry, which had affirmed the trialcourt’s judgment, the court in Kennedyreversed the trial court’s entry of summaryjudgment for the defendants followingthat court’s refusal to consider the decla-ration of a plaintiff’s expert who had notbeen timely designated. In so ruling, theKennedy court reasoned that the expertdisclosure statutes contemplated “‘theexclusion of expert testimony offered bya noncomplying party at trial, not at apretrial proceeding.’”55 Because the Ken -nedy court believed that “‘[a]dmissibilityat trial is not necessarily the same as admis-sibility at a summary judgment proceed-ing,’” the court reasoned that “‘evidencemade inadmissible at trial by reason ofthe express procedural bar [of the disclo-sure statutes] does not necessarily make
the evidence inadmissible in a summaryjudgment proceeding.’”56
In affirming the court of appeal’s judg-ment in Perry, the supreme court expresslydisapproved of Kennedy and rejected itsunderlying assumption that admissibilitymeans something different at trial than atsummary judgment.57 The court reasonedthat under Section 437c(d), a declarationsubmitted in opposition to a summaryjudgment motion “‘shall set forth admis-sible evidence.’”58 The court then citedapprovingly to Bozzi for the propositionthat this provision “requires the evidencepresented in declarations to be admissible
at trial.”59 Based on this interpretation ofSection 437c(d), the court concluded thatif expert opinion evidence is subject toexclusion at trial based on a party’s non-compliance with the expert disclosurestatutes, that evidence perforce cannot beconsidered at summary judgment.60
By emphasizing that evidence cannotbe considered at summary judgment unlessit would be admissible at trial, Perry under-mines the Garrett court’s reasoning. Asexplained, the Garrett court distinguishedSargon and applied the rule of liberal con-struction to hold that the plaintiff’s expert’stestimony was admissible at summary
Los Angeles Lawyer October 2018 27
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judgment even though the court had nobasis to assess whether the testimonywould be admissible at trial. But Perrynow makes clear that expert opinion evi-dence is admissible at summary judgmentif and only if it would be admissible attrial. Because there is no basis to apply arule of liberal construction when assessingthe admissibility of expert opinion evidenceat trial, there likewise is no basis to applythat rule when assessing the admissibil -ity of expert opinion evidence submittedin opposition to a summary judgmentmotion.
Unlike Perry, Apple was not a sum-mary judgement case. Instead, the issuein Apple was whether the Sargon admis-sibility standard applied to expert opinionevidence submitted in connection withclass certification motions. The defendantchallenged the materials and methodolo-gies on which the plaintiffs’ experts reliedfor their damages opinions and repeatedlyurged the trial court to apply Sargon. Thecourt refused that invitation, however, and“expressed concern that applying Sargonwould ‘turn class cert[ification] motionsinto these massive hearings.’”61 In grantingclass certification, the court reaffirmed itsbelief that Sargon did not apply and thatthe defendant’s expert challenges presented“issues for trial.”62
The court of appeal reversed. The courtbegan its analysis by emphasizing that atrial court “may consider only admissibleexpert opinion evidence at class certifica-tion” and that “[t]he Evidence Code pro-vides the framework for the admissibil -ity” of such evidence.63 The court thenex plained that the supreme court in Sargonprovided “definitive guidance to courtsconsidering the admissibility of expertopinion evidence” and that the court’sinterpretation of Sections 801(b) and 802“applies wherever the Evidence Codedoes.”64 In holding that Sargon appliesequally at class certification as at summaryjudgment and trial, the Apple court con-firmed that “[t]here is only one standardfor admissibility of expert opinion evi-dence in California, and Sargon describesthat standard.”65 Moreover, the courtreasoned that exercising a gatekeepingrole in each of these procedural contexts“serves a similar salutary purpose.”66
The Garrett Footnote
Although the Apple court did not purportto address the conflict between Garrettand Bozzi, the court did discuss Garrettin a footnote. The court noted that Garrettapplied the rule of liberal construction tohold that “an expert declaration in oppo-sition to summary judgment should not
have been excluded even though the ex -pert’s description of his methodology wasrelatively thin.”67 The court then explainedthat “[e]ven accepting Garrett’s analysis,”no rule of liberal construction applies atclass certification.68 By describing Garrettin this manner, the court suggested that itmay view Garrett with disfavor.
More importantly, the reasoning inApple is at odds with that in Garrett. Inholding that the rule of liberal construc-tion applies when assessing both theadmissibility of expert opinion evidencesubmitted in opposition to summary judg-ment as well as the sufficiency of thatevidence to create a triable issue of fact,Garrett conflated the distinct legal con-cepts of admissibility and sufficiency andcreated what effectively is a different andlower standard for admission of certainexpert testimony than that described inSargon. But similar to Bozzi, Apple reaf-firms what the supreme court recognizedin Yates more than a century ago—namely,that admissibility and sufficiency, whilerelated, “are distinct” legal issues.69 More -over, similar to Perry, Apple now confirmsthat following Sargon, “there is only onestandard for admissibility of expert opin-ion evidence in California.”70 Moreover,by observing that Sargon applies “at classcertification and otherwise,” Apple also
28 Los Angeles Lawyer October 2018
confirms that this singular admissibilitystandard applies regardless of the proce-dural context in which expert opinion evi-dence is proffered.71
In addition, Apple explicitly rejects therationale that led the Garrett court to dis-tinguish Sargon and apply the rule of liberalconstruction to a threshold admissibilitydetermination. As explained, the Garrettcourt distinguished Sargon on the groundsthat the trial court there had conducted aSection 802 evidentiary hearing to assessthe admissibility of expert opinion testi-mony at trial. However, the Apple courtreasoned that Sargon is not distinguishableon that basis.72 Indeed, the court confirmedthat the Sargon admissibility analysis is“not limited” to the trial context but alsoapplies at summary judgment and classcertification, and that “nothing in thatopinion mandates or even encourages hold-ing such a hearing for every expert, at trialor otherwise.”73 Because it rejects Garrett’sstated basis for distinguishing Sargon,Apple necessarily calls into question theGarrett court’s decision to extend the ruleof liberal construction to admissibilityassessments.
Implications for Practitioners
As noted, the California Supreme Courthas not resolved the conflict betweenGarrett and Bozzi. When presented withan argument that the trial court shouldapply a relaxed standard of admissibil itypursuant to Garrett, the moving party ata minimum should seek to preserve theissue for appeal. Nevertheless, there areother practical steps that the moving partycould take, depending on the circumstances.
For example, when noticing its motion,the moving party might consider request -ing that—before ruling on the motion—the court conduct an evidentiary hearingunder Evidence Code Section 802 to assessthe purported basis of any expert opinionevidence submitted by the opposing party.A court unquestionably has authority toconduct a Section 802 hearing in the sum-mary judgment context. If the court con-ducts the requested hearing, the rationalethat led the Garrett court to distinguishSargon and liberally construe the opposingparty’s expert declaration arguably shouldno longer apply.
Alternatively, the moving party mightconsider asking the court to defer rulingon its motion until after the party has hada reasonable opportunity to depose theopposing party’s expert. Courts have al -lowed discovery in such circumstances.74
With a more developed evidentiary record,a party moving for summary judgment maybe able to show why the opposing party’s
expert opinion evidence is inadmissibleregardless of whether the trial court appliesthe rule of liberal construction. n
1 Sargon Enters. Inc. v. University of S. Cal., 55 Cal.4th 747 (2012).2 Garrett v. Howmedica Osteonics Corp., 214 Cal.App. 4th 173 (2013).3 Bozzi v. Nordstrom, Inc., 186 Cal. App. 4th 755(2010).4 Perry v. Bakewell Hawthorne, LLC, 2 Cal. 5th 536(2017).5 Apple Inc. v. Superior Ct., 19 Cal. App. 5th 1101(2018).6 See Sargon, 55 Cal. 4th at 776-78.7 Roberti v. Andy Termite & Pest Control, 113 Cal.App. 4th 893, 898, 904-06 (2003) (reversing the trialcourt’s exclusion of plaintiff’s experts’ testimony andreasoning that the court improperly applied “a thresh-old reliability test” akin to that applied by federalcourts under Daubert v. Merrell Dow PharmaceuticalsInc. (509 U.S. 579 (1993)) when it found that “extrap-olation of these animal studies to humans is specula-tive”).8 Lockheed Litig. Cases, 115 Cal. App. 4th 558, 564,566 (2004) (upholding the trial court’s exclusion ofan expert’s general medical causation opinion becausethe epidemiologic study on which he relied “providedno reasonable basis” for his opinion that plaintiffs’alleged exposure to certain chemicals resulted in anincreased risk of cancer).9 Sargon, 55 Cal. 4th at 769-70.10 Id. at 770 (quoting Lockheed Litig. Cases, 115 Cal.App. 4th at 564)).11 Id.12 See Sargon, 55 Cal. 4th at 771.13 Id. at 773.14 See id. at 770-72.15 Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579(1993).16 General Elec. Co. v. Joiner, 552 U.S. 136 (1997).17 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).18 By quoting approvingly from Daubert, Joiner, andKumho, Sargon also made plain that contrary toRoberti, the foundational assessment required by sec-tions 801(b) and 802 should draw on the admissibilityprinciples developed by the federal courts. See generallyP. Choate & K. Larson, Sargon Enterprises v. USC:A Step Toward Daubert, LAW360 (Mar. 20, 2014).That said, Sargon confirms that the “general accep-tance” test described in People v. Kelly (17 Cal. 3d24 (1976)) and People v. Leahy (8 Cal. 4th 587 (1994)),still applies to a narrow category of expert testimony—i.e., that which is “based on new scientific techniques.”Sargon, 55 Cal. 4th at 772 n.6.19 Garrett v. Howmedica Osteonics Corp., 214 Cal.App. 4th 173, 187 (2013).20 Id. at 188.21 Id. at 189.22 Jennifer C. v. Los Angeles Unified Sch. Dist., 168Cal. App. 4th 1320, 1332-33 (2008).23 Powell v. Kleinman, 151 Cal. App. 4th 112, 125-26, 128-30 (2007).24 Garrett, 214 Cal. App. 4th at 189.25 Id.26 Id.27 See Bozzi v. Nordstrom, Inc., 186 Cal. App. 4th755, 762 (2010).28 Id. at 761.29 Id.30 Id. (emphasis in original).31 See Garrett v. Howmedica Osteonics Corp., Petitionfor Review, No. S210018 (Cal. Apr. 16, 2013); Liu v.Superior Ct., Petition for Review, No. S211042 (Cal.May 30, 2013).
32 See Jennifer C. v. Los Angeles Unified Sch. Dist.,168 Cal. App. 4th 1320, 1331 (2008).33 See id. at 1332.34 Id.35 See id.36 See Powell v. Kleinman, 151 Cal. App. 4th 112,120-21 (2007).37 See id. at 122 (“Because the court sustained Dr.Kleinman’s evidentiary objections and excluded Dr.Meub’s declaration, we review the court’s ruling forabuse of discretion.”).38 See id. at 122-23.39 Id. at 123.40 See id. at 126.41 Id. at 130.42 See id. 130-31.43 People v. Graves, 137 Cal. App. 1, 10 (1934).44 Yates v. Smith, 40 Cal. 662, 669 (1871).45 Eagle Oil & Ref. Co. v. B.H. Prentice, 19 Cal. 2d553 (1942).46 Id. at 556.47 See id. (explaining that declarations submitted inopposition to summary judgment motions “need notnecessarily be composed wholly of strictly evidentiaryfacts”).48 See Overland Plumbing, Inc. v. Transamerica Ins.Co., 119 Cal. App. 3d 476, 484 (1981) (citing CraigCorp. v. County of Los Angeles, 51 Cal. App. 3d 909,915 (1975) for the proposition that the 1973 amend-ment “reverse[d] a line of California summary judgmentdecisions that permitted a summary judgment motionto be denied by a counterdeclaration suggesting triableissues of fact based on conclusions of law and otherinadmissible evidence”).49 Eagle Oil, 19 Cal. 2d at 556.50 Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826,848 (2001).51 Caldwell v. Paramount Unified Sch. Dist., 41 Cal.App. 4th 189, 203 (1995).52 Id., Law Revision Comm’n Comments.53 Jauregi v. Superior Ct., 72 Cal. App. 4th 931, 939(1999).54 Kennedy v. Modesto City Hospital, 221 Cal. App.3d 575 (1990). See also Perry v. Bakewell Hawthorne,LLC, 2 Cal. 5th 536, 539 (2017).55 Perry v. Bakewell Hawthorne, LLC, 2 Cal. 5th 536,540 (2017) (quoting Kennedy, 221 Cal. App. 3d at582).56 Id.57 See id. at 543.58 Id. at 541 (quoting CODE. CIV. PROC. §437c(d)).59 Perry, 2 Cal. 5th at 541 (emphasis in original) (inter-nal citations omitted). 60 See Perry, 2 Cal. 5th at 541-42.61 Apple Inc. v. Superior Ct., 19 Cal. App. 5th 1101,1111, 1114 (2018).62 Id.63 Id. at 1117 (emphasis in original) (internal citationsomitted). 64 Id. at 1118-19.65 Id. at 1119.66 Id.67 Id. at 1119 n.3.68 Id.69 Id. at 1124 (“Admissibility is governed by theEvidence Code, as interpreted by Sargon and otherauthorities. Substantiality [of expert opinion evidenceat the appellate court level] is a rule of appellate review,with specific criteria for expert opinion evidence.”).70 Id. at 1119.71 Id. at 1125.72 See id. at 1118-19.73 Id. at 1118-20.74 See Hernandez v. Superior Ct., 112 Cal. App. 4th285, 298 (2003); Sanchez v. Hillerich & Bradsby Co.,104 Cal. App. 4th 703, 718 (2002).
Los Angeles Lawyer October 2018 29
a tort is committed and there is aresulting liability, someone has topay. Between spouses committed to
a marriage, there may be little debate as to how a tortobligation is paid; however, when a dissolution actionis initiated or pending, the question that undoubtedlyarises is: Who will pay for this? The family law litigatormust first understand how liability should be appor-tioned to fully advise his or her client in the dissolutionmatter. Moreover, to understand how liability shouldbe apportioned, the family law litigator must understandthe difference between torts that create communityliability and those that create separate liability. Whilethere are rules that provide a comprehensible generalframework, there are nuances to the rules that couldhave a dramatic impact on a client’s finances if notident ified. Understanding the community versus separatetort distinction provides only part of the picture. Thefamily law practitioner must also understand the rightsof third-party creditors to craft a strategy to addressthe debt in resolving the dispute, if any.
Family Code Sections 900 et seq. provide the rulesfor the liability of marital property. Family Code Section902 provides that a “debt” is an obligation incur redby a married person before or during marriage, whetherbased on contract, tort, or otherwise. Family CodeSection 903(b) provides that the time the debt is“incurred” is the time that the tort occurs.
In general, the community estate is liable for thedebts incurred by either spouse before or during themarriage, regardless of which spouse has the manage-ment and control of the property and regardless ofwhether one or both spouses are parties to the debt orto a judgment for the debt.1 However, the earnings ofa spouse during the marriage are not liable for a debtincurred by the other spouse prior to the marriage.2
This eliminates a third-party creditor’s ability to collectagainst the nontortfeasor spouse through vehicles suchas an earnings withholding order/wage assignmentorder. Further, after the earnings have been paid to thenontortfeasor spouse, the earnings will remain freefrom liability as long as they are held in a deposit
30 Los Angeles Lawyer October 2018
HA
DI F
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Jack J. McMorrow is a family law attorney at Harris Ginsberg LLP in Los Angeles. He is president of the Barristers Section of the BeverlyHills Bar Association and the State Bar Family Law Executive Committee representative to the California Young Lawyers Association.Brian I. Friedman is a certified family law specialist at the Law Offices of Robert J. Friedman and of counsel to Park Family Law, bothlocated in Beverly Hills.
By JACK J. McMORROW and BRIAN I. FRIEDMAN
FAMILY CODE SECTION 2625 PROVIDES A TEST TO DETERMINE WHETHER A COMMUNITY ESTATE HAS
BENEFITTED FROM THE "FRUITS" OF TORTIOUS CONDUCT
account in which the debt-incurring, tort-feasor spouse has no right of withdrawaland they are not commingled with othercommunity property.3
Upon divorce, the family law court hasjurisdiction to assign the parties’ debts toeither or both of the spouses. Family CodeSection 916 enumerates the following rulesconcerning assignment of debt: 1) a marriedperson is personally liable and his or herseparate property and community propertythat the person receives is liable for a debtincurred by that person from before orduring the marriage, regardless of whetherthe debt was assigned to them at the timeof division; 2) a married person is not per-sonally liable, nor is the separate propertyor the community property he or shereceives at the time of division liable forthe debts that the spouse incurred priorto or during the marriage, unless the debtwas assigned for payment by the personin the division of the property; and 3) amarried person is personally liable and hisor her separate property and communityproperty that the person receives is liablefor a debt incurred by the person’s spouseprior to or during the marriage if the debtwas assigned for payment by the personin the division of the property. If, after theproperty division, a money judgment froma subsequent debt collection case (i.e., ajudgment from a tort case) is entered, theperson and the property the person receivedare not subject to enforcement of the judg-ment unless that person is made a partyto the judgment.
It is also important to note that whilethe family law court has jurisdiction toorder one party to pay an obligation to acreditor, the creditor has no right to enforcethe court’s order if the name of the spouseis not listed on the debt or the judgmentfor the debt.4 In this instance, it will likelyfall to the spouse that was not required topay the debt per the judgment to enforcethe judgment.
Guideline for Analysis
There is two-step process to determinewhether the community may be liable forthe tort. Step one is determining when thetort occurred. Step two is determiningwhether the nature and purpose of the tortbenefitted the community.
In the first step, the court, in adjudi-cating the apportionment of the tort-related debt or obligation, is charged withdetermining the character of the debt,community versus separate. Whether adebt is community or separate dependson the timing, nature, and purpose of thetortious conduct. A comprehensive under-standing of the factors and analysis will
allow the family law litigator to advisehis or her client regarding the debt andthe best course of action to resolve theissue within the dissolution action.
As a threshold issue, the communitycannot be liable for a tort that was notcom mitted during the marriage. The Calif -ornia Family Code provides that tort debtis deemed incurred at the time the tortoccurs.5 Torts occurring before or afterthe marriage will per se be the obligationof the tortfeasor. This threshold appliesto intentional as well as negligent conduct.The court in In Re Marriage of Feldnerexplained that when the liability arisesout of a post-separation tort, “there is noneed to make the distinction betweenintentional and negligent torts, as bothcategories are [the tortfeasor spouse’s]separate [debt] under [Family Code] sec-tion 903, subdivision b.”6 The Feldnerruling suggests that negligence occurringthe day after the parties’ separation createsseparate liability.
Because the timing rule is used to char-acterize debts, the family law litigator mustidentify the date of separation as a crucial,interrelated issue. The nontortfeasor spousemay wish to assert an earlier date of sep-aration if it would force a tort to be cate-gorized as a post-separation tort and sep-arate obligation of the tortfeasor spouse.Often, a new client may be ignorant ofhis or her full liabilities or those of thespouse. As a practice point, a family lawpractitioner not confident he or she knowsall the issues at the time of filing the client’sfirst appearance would be wise to write“To Be Determined” for the parties’ dateof separation.
Not all negligence occurs at one parti -cular moment. Sometimes the negligencecan occur over months or even years (e.g.,professional malpractice). Depending onthe type of negligence that occurs, theremay be specific authority determining whenthe “date of incident” occurred. However,when there is no way to pinpoint the spe-cific date the tort oc curred, the answermay be to determine the overall length oftime during which the tort occurred inrelation to the date of separation and assignthe liability pro rata between the commu-nity and the tortfeasor.
Timing is only a threshold issue; there-fore, the second step involves a morenuanced analysis once it is determined thatthe tort occurred during the marriage, sig-naling that the community may be liable.In fact, Family Code Section 1000 providesan order of preference for collecting debtsfrom a married couple, and perhaps givesa hint as to how to apportion tort debt.7
As set forth in Section 1000(b), the order
of collection depends on whether or notthe tortfeasor spouse was “performing anactivity for the benefit of the community.”The collection statute states:
(1) If the liability of the married per-son is based upon an act or omissionwhich occurred while the marriedperson was performing an activityfor the benefit of the community,the liability shall first be satisfiedfrom the community estate and sec-ond from the separate property ofthe married person.(2) If the liability of the married person is not based upon an act oromission which occurred while themarried person was performing anact ivity for the benefit of the com-munity, the liability shall first be satisfied from the separate propertyof the married person and secondfrom the community estate.The benefit analysis suggests that tim -
ing is not always a controlling factor. Theanalysis ap plies post-separation based onthe same reasoning. When the communityestate benefits from the tortious conduct,the community should be liable for theobligation.
These considerations are not meant tointerfere with traditional notions of tortliability. Other concepts, such as vicariousliability or joint venture liability may resultin liability to either spouse regardless ofthe aforementioned analysis. Third partieswill not concern themselves with the appor-tionment analysis discussed herein; theywill attempt to collect from either or bothparties to the extent that they can. Regard -less of how the obligation is satisfied (i.e.,who has to pay), the appropriate appor-tionment of the obligation remains a ques-tion, and if a spouse is forced to pay adebt for which the other is liable, he orshe will have to assert a reimbursementclaim in the dissolution action.
Intentional Torts
In apportioning debts associated with inten-tional torts, family law courts have centeredtheir analysis on whether or not the com-munity benefitted from the “fruits” of thetortious conduct.8 This “benefit-based test”is codified in the statute relating to theassignment of debts in divorce. FamilyCode Section 2625 provides that all sepa-rate debts—including those incurred by aspouse during marriage and before thedate of separation that were not incurredfor the benefit of the community—shallbe confirmed without offset to the spousewho incurred the debt.
The initial framework for this analysiswas set forth in In Re Marriage of Stitt.9
32 Los Angeles Lawyer October 2018
In Stitt, the wife, Ida Mae Stitt, had workedas a manager of Zingo’s, Inc. during themarriage. Zingo’s filed suit against her forfraud and misappropriation of funds. Tosettle the civil suit, the wife agreed to pay$15,000 and give up all her stock. Al -though it is somewhat hard to believe giventhat she was tried and convicted of embez-zling funds, at trial in the family law actionthe trial court found that no benefit to thecommunity was shown and assigned the$15,000 liability to her.
The appellate court affirmed the trialcourt and reasoned:
Between the spouses, certain oblig-ations which are properly character-ized as separate may be assigned tothe responsible person if unpaid, orreimbursement may be ordered infavor of the community if the debtwas paid from community assets….In this instance the court found itappropriate to assign the full financialresponsibility for the wife’s embez-zlement to the wife, preventing herassertion of “community debt” fromdiminishing husband’s share of thecommunity property. This was con-sistent with the general principlefound in Civil Code Section 1714that the actor is solely responsiblefor willful [sic] and negligent actsunless shared, mitigated or excusedbecause of other principles of law.10
The rule is clear and seems simple e -nough: a spouse’s intentional conduct thatprovides no benefit to the community ishis or her separate obligation. The Stittcourt seemed quite happy to follow the“general principle” and hold the tortfeasorspouse 100 percent liable for the resultingdebt.
What about intentional conduct thatbenefits the community? Is the tortfeasorspouse still 100 percent liable? The familylaw litigator likely already suspects thatthe answer is no. If the community bene-fitted from the tort, it must be liable tosome extent.
The answer is found in In Re Marriageof Bell.11 There, the wife embezzled fundsfrom her employer, Palm Springs AerialTramway (Tramway), from 1985 to 1990.She was arrested in 1990, and Tramwayfiled suit against the parties seeking torecover the embezzled funds. The partiessettled that suit for $150,000, and thesuit was dismissed.12 The parties separatedin 1991, and there were $55,000 in attor-ney fees. The trial court in Bell followedthe Stitt court’s reliance on the “generalprinciple” to hold the tortfeasor spouseliable. It assigned all of the debt, includingthe settlement amount and the attorney
fees to the wife as her separate propertyobligations.
The appellate court overturned the trialcourt’s whole-hearted reliance on the Stittruling, stating:
As to the $150,000 civil settlement,however, we find the considerationsare different [than those in In reMarriage of Stitt]. Wife was stillengaged in an intentional tort, andHusband still knew nothing aboutit. Here, however, there was uncon-tradicted testimony that the com-munity received the benefit of theembezzlement. Even if the numberswere somewhat uncertain, it wasapparent that the community hadreceived a major infusion of fundsover the years, and it was clear thatall the embezzled funds had beenput to community, and not separate,use. Mr. [X] testified that the amountof the settlement was based on esti-mates of the amount that had beentaken, so the settlement was no morethan an attempt at restitution. Tothat extent, directing payment ofthe settlement by the communitywould do no more than bring it backto where it had been.13
However, the appellate court upheldthe trial court’s decision regarding theattorney fees:
In the present case we have an inten-tional tort (as well as a crime) butwe also have benefit to the com -munity. Applying the principles ofthe cited cases to the facts beforeus, we conclude that the trial courtcorrect ly decided that Wife shouldbe held liable for the attorney feesrequired for her defense in both thecivil and the criminal actions, andthat she should be liable also for thestate and federal tax liability arisingout of the embezzlement, includinginterest and penalties. Wife engagedin intentional tortious and criminalactivity and knowingly accepted therisk that she would be caught andwould have to face the consequences.Husband, who knew nothing of therisk and could do nothing to avoidit, should not in fairness bear thesame burden once it did go wrong.In this regard our decision here fol-lows the ruling in Stitt.”14
The community thus is liable for inten-tional torts to the extent there is evidenceit benefitted from the tortious conduct.This aspect resembles restitution, but thecommunity is not liable for the attorneyfees and costs associated with the party’sattorney fees if the nontortfeasor spouse
was ignorant of the tortious conduct.In Re Marriage of Bell does not address
the situation in which the tortfeasor spouseis aided by the nontortfeasor spouse. Ifthe parties are seemingly acting in concert,or if the nontortfeasor is knowingly enjoy-ing the spoils, the story would likely bedifferent.Then, the nontortfeasor certainlydoes not have sparkling clean hands.
The clean hands-innocent spouse excep-tion also applies in criminal matters. Inthe case of Q-Soft, Inc. v. Superior Courtof Orange County, the wife was convictedof embezzling from her em ployer.15 UnderPenal Code Section 186.11 (the freeze-and-seize law) the employer submitted aclaim seeking restitution by attempting toforce the sale of the wife’s two residences,one which she owned as “tenants in com-mon” with her first husband, and a secondhome that she owned with her second hus-band. Both husbands claimed that theywere “innocent spouses” and were com-pletely ignorant of the wife’s crimes andtherefore their share of the property shouldnot be seized. The court held that the bur-den of proof is on the noncriminal spousesto show that they were “innocent”—i.e.,lacked knowledge of the other spouse’scrimes—and that they “will not reap thefruit of fraud.”16
Other Considerations
For negligent tortious conduct committedduring the marriage, it seems that theanalysis is the same as it is for intentionaltortious conduct. In In re Marriage ofHirsch, the court was forced to ignore thenature of the conduct altogether becausethe tort action was settled prior to thetrial.17 In determining whether the com-munity would be liable, the appellate courtacknowledged that it did not knowwhether the conduct was negligent orintentional but stated “the characterizationof the conduct alone does not resolve thequestion.”18 The court confirmed that theultimate question was whether the conductbenefitted the community.
What if there is no benefit from theactivity, and the activity is everyday negli-gence (e.g. driving a car)? The characteri-zation of this debt would likely be solelytied to the timing of the conduct. (Afterall, there are very few “fruits” to be reapedin driving a car.) Then, the timing factorbecomes all the more important. If theparties are married, the debt should becommunity property under Family CodeSection 903(b).
However, in a situation in which theliability stems from activity that reallyshould be a separate debt, liability for neg-ligent conduct should mirror the concept
Los Angeles Lawyer October 2018 33
34 Los Angeles Lawyer October 2018
of respondeat superior, as spouses areagents of the community. Under respondeatsuperior, an employer is vicariously liablefor the negligent conduct of his or heremployee when the employee is workingwithin his or her capacity as an employee.The employer is not, however, liable whenthe employee commits intentional torts oris engaged in a “frolic.”
In establishing vicarious liability, thereis an important distinction between a“frolic” or “detour.” If an employee isfound to be taking a longer or less directroute in traveling from one place to an -other, but the travel is found to be in fur-therance of employment, the employee isheld to be on a “detour,” and the employeris liable. However, if the employee is on adereliction of duty in his or her travelswhen a tort is committed, the employee isfound to have been engaged in a “frolic,”and the employer is not liable for the tort.
Analogizing this concept to a marriage,in which the parties are presumed alwaysto be working in furtherance of the mar-riage, the question becomes “how do youtake a ‘frolic’ from a marriage”? Moreaptly phrased, what activities fall outsidethe scope of one’s spousal duties?
Management and maintenance of sep-arate property certainly seems to fall intothis category. If a spouse owned a rentalproperty prior to marriage and maintainedit as his or her separate property (and,taking it to the extreme for purposes ofdiscussion, there was a premarital agree-ment providing that the community wouldnot gain an interest in the property as aresult of the spouse’s efforts to maintainand manage the property during the mar-riage) but failed to adequately maintainthe property which then resulted in tortliability, the spouse’s negligent conductbelongs only to him or her under the benefitanalysis as the community was not goingto benefit from his or her rental income.
Negligent conduct while on a vacationcommitting infidelity would also seem tofall outside the scope of the marriage. Thatwould surely be a matter of contention ina dissolution proceeding.
Occasionally, the parties’ exposure fortort and contract liability is not completelyknown, even at the time of the final set-tlement or trial. In the case of In re Mar -riage of Nassimi, the parties reached amarital settlement agreement disposing ofall issues, or so they thought.19 A fewmonths later, the husband was sued forbreach of contract by a third party towhom he had sold his business prior tothe spouses’ date of separation. The hus-band filed a post-judgment request to havethe lawsuit considered an “unadjudicated
debt of the marriage” pursuant to FamilyCode Section 2556, seeking to have thewife contribute to attorney fees to defendthe lawsuit. The court of appeal reversedthe trial court’s ruling citing to FamilyCodes Sections 903 and 910 as well asFeldner in that the community entered intothe contract and that the breach was acommunity obligation per Family CodeSection 902.20 Further, the court gave nodeference to the fact that the lawsuit wasfiled after the date of separation for thesame reasons as in Feldner because thecontract giving rise to the debt was madeduring the marriage.
It is important to note that the familycourt has the ability to award a spousewho is neither a tortfeasor or criminaloffsetting assets in the event communityproperty is wrongfully seized. In In ReMarriage of Beltran, the husband, a mem-ber of the armed forces, was convicted ofsexually molesting a child and was strippedof his retirement and other accumulatedbenefits.21 The parties had a five-year mar-riage, and there was a community interestin the lost benefits. The court of appealaffirmed the award of offsetting assets tothe wife, holding that the wife was entitledto be reimbursed for her lost share ofcommunity property based on the hus-band’s criminal conduct. Obviously, thisremedy is practical only when sufficientoffsetting assets exist.
Attorney Fees
In the instance when the (alleged) tortfeasorspouse wins at the tort trial, there is nointentional or negligent tortious conduct.If the community would have been on thehook per the foregoing time and benefitsanalysis, then the (alleged) tortfeasor spousesuccesfully vindicated the community attrial, and as such, he or she should not beliable solely for the attorney fees incurred.Accordingly, the attorney fees are a com-munity obligation, and a community debt.How ever, if the tortfeasor loses at the torttrial, the determination of the characterof the debt associated with the tortiousconduct rests on whether the communitybenefitted from the conduct.
If the conduct did not benefit the com-munity, all costs, fees, and liability are thetortfeasor’s separate liability. Alternatively,if the conduct did benefit the community,the community is liable for the judgmentor settlement. However, the attorney feesare the tortfeasor’s separate obligation.
If the community is found to be liablefor the attorney fees in any form, Nassimiprovides that the amount of fees shouldbe scrutinized to see which portion is actu-ally attributable to the defense of the com-
munity. In the event that the matter is set-tled, the tortfeasor spouse has the oppor-tunity to have input regarding the termsof settlement. It would be in his or herbest interest not to admit any negligence;however, the tortfeasor spouse has a fidu-ciary obligation to the community andmust not act in his or her own self-interestto the detriment of the community’s inter-ests. A tortfeasor spouse must not negotiateand avoid admitting to liability at theexpense of the community. Re gardless ofthe judgment or settlement, the analysisshould not stop there. There must be aninquiry as to whether or not the communitybenefitted. If the matter is settled, a set-tlement or judgment will be available,which will likely establish whether the con-duct was intentional or negligent.
As with many issues in family law, thefamily law attorney must inform his orher client that this is a somewhat unsettledand murky area of the law. The test—whether the conduct benefitted the com-munity—is not necessarily a routine matter.It is a factual determination based on tim-ing and an analysis of whether the com-munity benefitted. n
1 FAM. CODE §910(a).2 FAM. CODE §911(a).3 Id.4 FAM. CODE §2023.5 See FAM. CODE §903(b); see also In re Marriage ofFeldner, 40 Cal. App. 4th 617, 628 (1995) (“Eitherparty might have requested the family court to retainjurisdiction to determine whether a part of the lossesin the Allen action should be characterized as tortdamages, and either separate or community, dependingon when the tort occurred”).6 Feldner, 40 Cal. App. 4th at 628 n.12.7 FAM. CODE §1000(b).8 See In re Marriage of Bell, 49 Cal. App. 4th 300,308-10 (1996) (“The community had shared in thebenefit and could properly be asked to share in thecost. Although this was not exactly the outcome in Inre Marriage of Hirsch, dictum in Hirsch indicated thecourt there would have approved such a result in thiscase; the court there stated, ‘For example, had wifeput the embezzled funds into a community accountor other community property, it would have beenappropriate for the community to bear the correspond-ing loss.’” (internal citations omitted.). 9 In re Marriage of Stitt, 147 Cal. App. 3d 579 (1983).10 Id. at 588.11 Bell, 49 Cal. App. 4th 300.12 Id. at 302-303.13 Id. at 310.14 Id. at 309.15 Q-Soft, Inc. v. Superior Ct., 157 Cal. App. 4th 441(2007).16 Id. at 453.17 In re Marriage of Hirsch, 211 Cal. App. 3d 106(1989).18 Id. at 111.19 In re Marriage of Nassimi, 3 Cal. App. 5th 667(2016).20 Id. at 685-86.21 In Re Marriage of Beltran, 183 Cal. App. 3d 292(1986).
Hillel D. Abrams
Chinyere Abbey Abuka
Mario Acosta, Jr
Shahriar Adorbehi
Kiren Ahuja
Edwin I. Aimufua
Michael Alder
Leila Alemi
Aarona A. Alexander
Cynthia A. Alexander
Peter Ian Altman
Camila Lucero Alvarez
Jonathan Brook Ambaye
James Andrade
Michael Benjamin Atkins
Gina Austin
James D. Bainbridge
Randi D. Bandman
Keith Patrick Banner
Jared A. Barry
MIchael H. Berg
William J. Bernfeld
Robert Black
Robert Samuel Blonstein
Alex R. Borden
Peter Hiller Borenstein
Hon Kevin C. Brazile
Brian K. Brookey
Mackenzie M. Brown
Michael Anthony Brown
Hon Daniel J. Buckley
Mark B. Burnstein
Liana C. Carter
Greg James Chambers
Into B. Champon
Eric W. Cheung
Christine C. Cohn
Misty L. Colwell
Bryce Michael Cullinane
Jim Cunneen
Glenn Danas
Anahit Danielyan
Alon Darvish
Jennifer R. Dean
Barbra W. Diallo
Debby S. Doitch
Roberto Dominguez
Max Draitser
Carol Dubron-Witlin
Mark Perry Edson
Jennifer S. Elkayam
Lyric Enav
Herman Enayati
Joshua Roy Engel
Julie A. Esposito
Debra Fallek
Jennifer Farrell
Regina E. Filippone
Robert W. Finnerty
Rachel L. Fiset
Todd Frelinger
Noha Gabra
Fritzie Galliani
Vanessa Garcia
Christy Gargalis
Thomas Samuel Gelini
Sharon E. Gerber
Adena Gilbert
Mark Gomez
Valerie M. Goo
David M. Haghighi
Bradley JosephHamburger
Mark S. Hardiman
Eric P. Harmon
Daniel C. Heaton
Mark Alexander Hikin
Reginald A. Holmes
Mary Thornton House
Marlin E. Howes
Ann Hull
Matthew S. Ingles
Idan Ivri
Arwen R. Johnson
Stephen P. Jones
David M. Kane
Chris Gus Kanios
Blake Makoa Kawabata
Dennis L. Kennelly
Shaun Khojayan
Vandad Khosravirad
David M. Kim
Jessica Kronstadt
Robert K. Lee
Mindy J. Lees
Diana Hughes Leiden
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WELCOMETO OUR NEWEST MEMBERS
36 Los Angeles Lawyer October 2018
ON JULY 9, PRESIDENT DONALD TRUMP nominated Brett Kavanaughto serve on the U.S. Supreme Court, and on July 25, a federaldistrict judge ruled that a lawsuit accusing the president ofviolating the emoluments clauses of the U.S. Constitution assertedsufficient facts and legal theories to proceed. These events mayhave a profound impact on the Trump presidency.
In these pages a few months after President Trump was elected,I noted that despite his bold declaration that “I have a no-conflictsituation because I’m president” (which sounded hauntingly likeRichard Nixon’s infamous claim that “when the president doesit, that means it is not illegal”), the president was facing veryserious legal risks.1 Now, that prediction has been born out in acomprehensive 52-page decision by U.S. District Judge Peter J.Messitte.2
The court agreed with the plaintiffs that “emoluments” means“any profit, gain, or advantage” and rejected the president’s morenarrow definition meaning only a payment made as compensationfor official services.3 It found his arguments “unpersuasive,” and“misplaced,” reflecting a “cramped interpretation” of theConstitution,4 which ignored the “large accumulation of historicalevidence” and would lead to an “essentially absurd result.”5
Judge Messitte noted that the plain language broadly encom-passed “any present, Emolument, Office, or Title, of any kindwhatsoever,” without exception. Relying on historical scholarship,he found that “every English dictionary definition of ‘emolument’from 1604 to 1806” included the plaintiffs’ broad definition,while only 8 percent included the president’s definition.6 Also,the word was often used in this broad sense by English JuristWilliam Blackstone, drafters of state constitutions, Supreme Courtjustices, legal and economic treatises, and the Framers themselves.
Judge Messitte found that plaintiffs’ definition addressed theFramers’s “profound concern” over “possible foreign influence”with “broad anti-corruption provisions.”7 Where “for example,a President maintains a premier hotel property that generatesmillions of dollars a year in profits, how likely is it that he willnot be swayed, whether consciously or subconsciously, in anyand all of his dealings with foreign or domestic governmentsthat might choose to spend large sums of money at that hotelproperty?”8
Having determined the legal definition of emoluments, JudgeMessitte found that the plaintiff’s factual allegations, if proven,met that standard. The plaintiffs allege that “foreign governmentsor their instrumentalities have patronized the Trump InternationalHotel, spending government funds to stay at the Hotel, eat at itsrestaurants, and sponsor events in the Hotel’s event spaces.”9
The Kingdom of Saudi Arabia spent thousands of dollars at thehotel between October 1, 2016, and March 31, 2017, and amonth after President Trump was inaugurated, the Embassy ofKuwait moved its National Day celebration from another hotelto the Trump International Hotel.10
The plaintiffs also allege the hotel received an emolument inconnection with its use of the Old Post Office Building under alease with the General Services Administration (GSA). BeforePresident Trump’s inauguration, the then-deputy commissionerof the GSA indicated he would be in violation of the lease unlesshe fully divested himself of all financial interests in the hotel.Instead, shortly after being sworn in, President Trump simplyreplaced the acting administrator of the GSA, who in an abruptabout-face promptly issued a letter determining that the presidentand the hotel were not in violation of the lease. But in doingthat, the plaintiffs allege, the federal government bestowed anunconstitutional emolument upon the president. The plaintiffsalso allege that the hotel has received substantial tax concessionsfrom the District of Columbia and that the State of Maine andon information and belief, other states have patronized the hotel,all in violation of the Domestic Emoluments Clause.11
Trump swore that he would “faithfully execute the office ofPresident of the United States, and will to the best of [his] ability,preserve, protect, and defend the Constitution of the UnitedStates.” If, after discovery (which could well lead to the disclosureof the president’s tax returns) and trial, the court finds that heviolated the emoluments clauses, it could issue declaratory andinjunctive relief. In addition, subject to appellate review, thepolitical climate, and who controls Congress, these constitutionalviolations could be deemed “high crimes and misdemeanors”and serve as articles of impeachment.
One man could change all that, however. According to anAugust report from the American Constitution Society andCitizens for Responsibility and Ethics in Washington, “the con-firmation of Judge Kavanaugh would significantly underminethe ability” of authorities “to conduct a credible, independentinvestigation of the President or the President’s campaign.”
Among the accusations of collusion and obstruction of justiceswirling around the Trump presidency, the obscure emolumentsclauses may play an unexpectedly prominent role. n
1 Stephen F. Rohde, Is the Emoluments Clause a Threat to Trump’s Presidency?,L.A. LAWYER, Mar. 2017, at 36.2 The District of Columbia and the State of Maryland v. Donald J. Trump, U.S.Dist. Ct. for the Dist. of Maryland, PJM 17-1596, July 25, 2018, U.S.3 Id. at 30.4 Id. at 20-21.5 Id. at 30.6 Id. at 22.7 Id. at 25.8 Id.9 Id.10 Id.11 Id.
closing argument BY STEPHEN F. ROHDE
Nexus of Kavanaugh and the President’s Emoluments Case
Stephen F. Rohde is a constitutional lawyer and author of the books AmericanWords of Freedom and Freedom of Assembly.
