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JUSTIN CLARK CONVINCES NINTH CIRCUIT IN OVER-DETENTION/RICO CASE

In June of 2004 plaintiff Avalos was arrested by Los Angeles County Sheriff’s Deputies on an Orange County warrant for domestic abuse but failed to notify Orange County of his arrest. Over two months later the Los Angeles County Sheriff’s Department (LASD) realized that Avalos had been over-detained and should be released. At the time of his release, LASD risk management personnel negotiated a $500 settlement with Avalos. Avalos was later given the settlement check at which time he signed a full release and settlement agreement. Avalos later sued claiming violation of his Fourth and Fourteenth Amendment rights as a result of his over-detention and his alleged involuntary waiver. He also claimed that defendants conspired and engaged in a pattern of racketeering activity in violation of RICO by fraudulently, oppressively, extortionately, or with threats duped plaintiff and others similarly situated into compromising their monetary claims for sums far less than those claims were worth. The District Court granted summary judgment in favor of defendants and was upheld by the Ninth Circuit since plaintiff failed to present evidence from which a reasonable jury could find defendants had a policy, practice or custom of over-detaining inmates. Avalos also failed to show an independent violation of the Constitution as a result of the alleged improper efforts to block his access to the courts. The Court further held that even if such a right exists, the defendants were entitled to qualified immunity since the right was not clearly established. Finally, summary judgment in favor of defendants on plaintiff’s RICO claim also proper since a predicate act that might support a finding of a pattern of racketeering activity was absent and since plaintiff offered no evidence of a specific injury to a business. Avalos v. Baca ___F.3d___, 2010 WL 625040 (C.A.9 (Cal.))).

MICHAEL D. ALLEN ARGUES AND WINS BEFORE NINTH CIRCUIT

Plaintiff Mortimer was a detainee at the Los Angeles County Jail pending trial on a rape charge. On August 14, 2000, Mortimer was acquitted by a jury. He was released from jail twenty nine hours after the entry of a court order authorizing his release. Mortimer subsequently sued Sheriff Leroy Baca claiming a policy or custom of deliberate indifference which caused a violation of his constitutional right to be released within a reasonable time after the basis for his detention had ended. Notwithstanding the Ninth Circuit’s pronouncements about Mortimer’s alleged over-detention in Berry v. Baca, 379 F.3d 764 (9th Cir. 2004), the “law of the case” doctrine did not preclude the District Court from entertaining Baca’s motion for summary judgment since the Ninth Circuit did not directly address the issue of deliberate indifference and since substantially different evidence was adduced in the subsequent motion, a recognized exception to the “law of the case” doctrine. The District Court considered a variety of measures taken by the Sheriff’s Department designed to reduce the time necessary to release inmates and concluded that the evidence did not support a finding that plaintiff’s over-detention was the result of a set of policies-or lack of policies-that amounted to a policy of deliberate indifference. Consequently Sheriff Baca could not be held liable in his official capacity. Mortimer v. Baca 594 F.3d 714 (9th Cir. 2010).

David Lawrence wins excessive force jury trial

On October 23, a federal jury rendered a defense verdict in a police excessive force case entitled Olvera v. Weidenkeller, CV 06-07585. The case began as an arrest of plaintiff who was found seated in a car smoking methamphetamine with an acquaintance. The Orange County Deputy ordered both individuals out of the car. While handcuffing the male suspect, the officer was punched in the jaw by the plaintiff who was then pepper sprayed by the deputy. The deputy was able to place cuffs on the plaintiff who later slipped the cuffs to the front of his body and somehow broke the rear window out of the police car and crawled out. The deputy, with the assistance of another deputy, was able, after a struggle, to re-apply the cuffs and to place leg restraints on the plaintiff and place him back in the police car. The plaintiff was convicted on a variety of charges and served four years in prison until his writ of habeas corpus was granted. The Office of the District Attorney decided not to re-try the criminal case, and this suit followed. It originated as a false arrest, malicious prosecution and excessive force case. A number of defendants including the District Attorney and Sheriff were dismissed before trial along with all causes of action except the federal excessive force claim against one individual defendant. Trial commenced on October 20, 2009 and on October 23rd the jury rendered a verdict in favor of Deputy Weidenkeller.

Dennis M. Gonzales wins back-to-back jury trials

In only three months with LBAC, Dennis Gonzales has won back-to-back jury trials. The first was a federal civil rights excessive force case entitled Fuller v. County of Orange, et al.. CV 04-6851 SVW (PJwX). The plaintiff claimed that, following his arrest for DUI by the California Highway Patrol, he was beaten by Orange County Sheriff’s Deputies while being booked into the Orange County Jail. On April 16, 2009, a federal jury returned a defense verdict after deliberating for one hour.

Two months later, Dennis tried and won another civil rights excessive force case in state court entitled Santos v. City of Culver City, et al. BC 372574. The plaintiff in that case was a juvenile who was seen “tagging” by Culver City police officers. Plaintiff claimed that during the pursuit that ensued, he was struck on the head and back with a baton or flashlight causing two large lacerations to his head and back injuries. The officers claimed that plaintiff injured his head while running through a dense thicket. On June 26, 2009, a jury returned a defense verdict after deliberating for an hour and a half.

LBAC welcomes renowned trial lawyer Dennis M. Gonzales

LBAC is excited to announce that Dennis M. Gonzales has joined the firm after more than 30 years and well over 100 defense jury verdicts with the Office of the Los Angeles County Counsel.

In 1974, Mr. Gonzales began his career with the Los Angeles County Counsel’s Office. He started in the Children’s Services Division, protecting the rights of juveniles. In 1976, he began working in the General Litigation Division and then went on to the Law Enforcement Services Division. He started litigating cases involving dangerous conditions and federal civil rights during this time. From 1980 through 2008, he specialized in “wrongful death” and “excessive force” cases in both State and Federal venues for the Los Angeles County Sheriff’s Department. While at the Office of County Counsel, Dennis tried and won over 120 cases in State and Federal Courts. The majority of those jury trials were in the areas of employment, civil rights, police misconduct and personal injury.

After his100th trial victory, he received awards from the Los Angeles County Bar Association, the Professional Peace Officers Association and the Sheriff’s Relief Association. In addition, he was awarded commendations by The Los Angeles County Board of Supervisors for his 100th Trial Victory and for 34 years of outstanding service.

In addition to litigation, Mr. Gonzales has been the leader of numerous seminars in trial tactics and strategy. Dennis joined LBAC in March of 2009.

Firm wins high profile “suicide by cop” wrongful death trial


On January 18, 2007, a Norwalk jury returned a verdict in favor of the City of Downey and two of its police officers in a high profile “suicide by cop” wrongful death case. The case was entitled Martinez v. City of Downey, et. al, Case No. BC 277402.

The suit arose from a vehicle pursuit following an attempt to stop Gonzalo Martinez [decedent] in the City of Downey for suspected driving under the influence. The pursuit entered the southbound Santa Ana Freeway (I-5) at speeds approaching 100 MPH. Decedent lost control while on a freeway transition and went off the road-way. Officers approached the car on foot to arrest Martinez. The decedent then tried to run down an officer with his car prompting shots from three separate officers. Decedent was apparently shot in the hand but was able to maneuver back onto the freeway and continue the pursuit.

Eventually the Martinez car was rammed by a police car causing it to lose control and collide with a parked car on a city street. The Martinez car was pinned against the parked vehicle by a police vehicle which had an operating dash-mounted video camera.

A stand-off ensued, with decedent ignoring numerous commands to exit the car, put his hands in the air and surrender. During that time, the decedent smoked one or more cigarettes.

Approximately eleven minutes after his car was pinned, decedent opened the driver’s door and stepped out of the car wearing an unzipped jacket and directly facing the officers. Officers ordered Martinez to put his hands in the air. Martinez raised his right hand which held a cigarette and placed it in his mouth, freeing his right hand. Decedent then reached with his right hand underneath the rear portion of his jacket towards the waistband area.

Believing that the decedent was reaching for a weapon, three officers fired upon the decedent. One officer fired fifteen rounds from an MP-5 sub-machine gun. Another fired two “bean-bag” rounds and a third fired one round from a .9 millimeter handgun, killing the decedent. No weapon was found on the decedent.

The Plaintiffs [decedent’s parents] contended that the dash-mounted videotape of the shooting and the eyewitness testimony of a neighbor confirmed that the decedent did not place his hand behind his back. A Los Angeles County Sheriff’s helicopter observer testified that he saw the decedent place his hand behind his back. The video tape was inconclusive.

Decedent was on a deferred entry of judgment program as a consequence of an arrest for possession of a controlled substance three months prior to the incident. The decedent also had two prior driving-under-the influence arrests and an arrest for being drunk in public. On the evening of the shooting, the parents came to the police station to find out if the decedent was their son. They reported that the decedent had an alcohol problem for ten years and that they had attempted to get him into a rehabilitation program. The father also stated that the night before the shooting, he had slapped his son out of frustration with his drinking. The father also said that the decedent had recently said “before I embarrass the family, I will die.” At trial, the Plaintiffs denied having made these statements.

Defense counsel David Lawrence successfully argued that the decedent intentionally precipitated his own death, i.e., “suicide by cop.”

FIRM WINS LONG-RUNNING FAIR HOUSING CASE FOR CITY OF POMONA

On June 29, 2006, LBAC, with David Lawrence as trial counsel, obtained a federal jury defense verdict in a case alleging violations of various fair housing laws under both state and federal law. At the crux of the case was an attempt in the mid to late 90s by a Pomona City Council person to assist an organization of property owners in a drug and crime ridden area of Pomona. The unofficial organization was dubbed “KKAPS” which constituted the first letters of the streets encompassing the area. The unofficial spokesman for KKAPS, Wilfred Keagy, was also a defendant but settled prior to trial. The plaintiffs were an African America property manager by the name of Grace Cross and a non-profit fair housing organization known as Inland Mediation Board. The plaintiffs claimed that the City through it Councilperson, aided KKAPS and created an apparent agency relationship by preparing KKAPS agendas and mailers, sending them out on City stationary, having City officials attend the meetings, arranging for a place for the meetings to take place on City property and by providing a variety of other services. The plaintiffs claimed that the City, through KKAPS, encouraged discrimination against African American tenants by the use of “code words” such as the “wish well list” which was a list of prior tenants of the area who had either left without paying rent or under other adverse circumstances. On one occasion, Mr. Keagy allegedly made remarks at a meeting attended by Grace Cross that African Americans should not be rented to since they were the source of the problems in the neighborhood. Ms. Cross, deceased at the time of trial, claimed that she was frightened by the statements and tenor of the meeting and moved away from Pomona as a result. In addition to their direct claims of discrimination, plaintiffs claimed disparate impact and presented evidence of changes of racial composition in the KKAPS area, which was rebutted by the defense demographer. After ten days of trial, the federal jury found in favor of the City on all claims. The City had offered $100,000 to settle the case and the plaintiffs’ last demand was $1,048,579.

FIRM SUCCESSFUL IN U.S. SUPREME COURT IN MAJOR EMPLOYMENT DECISION      top

In May of 2006, LBAC successfully convinced the U.S. Supreme Court to rule in favor of the County of Los Angeles, and reverse Ninth Circuit Court of Appeals in the case of Ceballos v. Garcetti. Ceballos, an employee of the Los Angeles County District Attorney's office, brought suit under 42 U.S.C. § 1983, alleging that County employees had retaliated against him for exercising his First Amendment rights. Specifically, Ceballos alleged that he was retaliated against for a memorandum he drafted arguing that an affidavit police used to obtain a critical search warrant was inaccurate.

LBAC and the County prevailed in the preliminary stages of the case after the District Court granted the County's summary judgment motion, finding no protected First Amendment speech interest in the memorandum because Ceballos wrote it in a purely job-related capacity, pursuant to his employment duties. The Ninth Circuit Court of Appeals reversed, holding that the memorandum was entitled to First Amendment protection because it was on a matter of public concern, and found that Ceballos' speech interests outweighed the government's interests in promoting workplace efficiency and avoiding workplace disruption.

LBAC filed a petition for certiorari with the U.S. Supreme Court which was granted. The case was argued twice before the Supreme Court, first while former Justice Sandra Day O'Connor was on the bench and again in March after Justice Samuel Alito Jr. took her place.

Ultimately, the U.S. Supreme Court reversed the Ninth Circuit's decision, holding that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and thus the Constitution does not insulate their communications from employer discipline. Garcetti v. Ceballos,126 S. Ct. 1951 (2006). This Supreme Court victory has positive and far-reaching implications for all of LBAC's clients!

PAUL BEACH NAMED IN SOUTHERN CALIFORNIA SUPER LAWYERS          top
 FOR THIRD STRAIGHT YEAR  
 

The firm is proud to announce that, as recently reported in California Lawyer Magazine, Paul Beach has been named in the Southern California Super Lawyers 2006 - Rising Stars Edition as one of the top young lawyers in California. This is the third year in a row that Paul has received this distinction. Paul was selected as a result of a survey of Southern California’s Super Lawyers and law firms in order to identify the top emerging lawyers in the state.

FIRM WINS CLASS ACTION TRIAL FOR ORANGE COUNTY          top
AND ENDS 27 YEAR INJUNCTION  
 

In November and December of 2004, David Lawrence and Christina Sprenger represented the County of Orange in a trial before the Honorable Gary L. Taylor in the consolidated actions entitled Pierce v. County of Orange , Case No. SACV 01-981 GLT(MLGx) and Stewart v. Gates, 450 F.Supp. 583 (C.D. Cal. 1978). The case was a class action suite brought on behalf of all pre-trial detainees at the Orange County jail alleging violations of the Americans with Disabilities Act (ADA) and its State law equivalent, Title 15 and the 1978 Stewart injunction which imposed inmate population limits on the jail and a variety of restrictions relating to outdoor exercise, seating in holding cells, time allotted to finish meals, visitation, access to legal materials, day room access, access to telephones, unsupervised visitation with minors, receipt of mail, minimum sleep times before and after going to court, access to blankets and the right to a bed within 24 hours of arrival at the jail. At one point in the protracted litigation, the court had certified a damages class action in addition to an injunctive relief class action. The firm was successful in getting the court to de-certify the damages aspect of the class action before trial. Following a bench trial, the Court issued its April 27, 2005 findings of fact and conclusions of law in the Pierce matter, finding that the plaintiffs had failed to prove any pervasive violations. In a separate 23 page order, Judge Taylor vacated the 1978 Stewart injunctions and dismissed the case, noting that “the minimum standard Stewart orders have outlived their time, and are unnecessary and no longer appropriate.”

LAWRENCE WINS RACIAL PROFILING CASE          top    

On September 1, 2004, a federal jury returned a defense verdict in favor of Manhattan Beach Police Officer Robert Schreiber. The trial finished what began as a racial profiling case against Schreiber, several other officers, the City of Manhattan Beach and its Chief of Police. In a lengthy opinion, United States District Court Judge Margaret Morrow granted summary judgment in favor of all defendants except Schreiber, the officer who initiated the traffic stop. Both sides sought and were granted the right to take interlocutory appeals. The cross-appeals resulted in the Ninth Circuit upholding all of Judge Morrow’s rulings. See Bingham v. City of Manhattan Beach (9th Cir. 2003) 329 F.3d 723. The two day trial that followed featured the testimony of Lonni Ali, the wife of Muhammad Ali. The plaintiff is the life-long friend and personal photographer of Ali. Muhammad Ali was in attendance during his wife’s testimony and closing arguments.

FIRM RECEIVES UNANIMOUS DECISION BY CALIFORNIA SUPREME COURT          top
IN DEFAMATION CASE  
 

On December 22, 2003, in a unanimous decision, the state Supreme Court held that the accrual of a cause of action for defamation was not delayed or otherwise tolled by the so-called discovery rule, where the alleged defamatory statements were republished in a mass media forum. Reversing the Los Angeles-based 2nd District Court of Appeal, the justices refused to give the plaintiff the benefit of the discovery rule, which tolls the statute of limitations in cases in which plaintiffs do not immediately learn that they have been wronged. Plaintiff was a witness in the O.J. Simpson murder case who sued her former boyfriend and a Los Angeles Deputy District Attorney for making alleged false statements that she was a "felony probationer," and also brought libel and slander claims against the author and publisher of a book that repeated those statements. Her lawsuit, filed in October 1997, however, was not filed until one year and one day after the book containing the alleged defamatory statements was first made available for sale in California. The trial court dismissed the suit pursuant to the defendants' motion for summary judgment on the ground that plaintiff missed the one-year deadline, notwithstanding plaintiff's declaration that she had not read the book and discovered the alleged defamatory statements until December 1996. The 2nd District, however, reinstated the suit. Chief Justice Ronald M. George, writing for the Supreme Court, reversed the appellate court decision, concluding that the one-year deadline for filing a suit began to run on "the date the book was first generally distributed to the public, regardless of the date on which plaintiff actually learned of the existence of the book and read its contents."

BEACH AND LAWRENCE NAMED ATTORNEYS OF THE YEAR          top    

On June 26, 2003, Paul Beach was honored at a reception held at the Los Angeles County Sheriff's Department. He has been named "Attorney of the Year" by the Los Angeles County Sheriff's Department for his excellence in representing the Sheriff's Department and its personnel. This was a repeat for the firm. David Lawrence received the same award on May 5, 2000.

LAWRENCE WINS 13-YEAR OLD SUPERVISORY LIABILITY CASE          top    

On January 9, 2004, David Lawrence obtained a defense jury verdict for former Los Angeles County Sheriff's Department officials in what seemed like a battle that would never end. The case arose from the February 8, 1991 arrest of Brett Thompson in which a Sheriff's canine bit Mr. Thompson. The arrest was criticized in the original Kolts report as an example of instances in which additional force was used to subdue criminal suspects who were bitten by and fought with the canines. Orders granting defense motions for summary judgment were reversed twice by the Court of Appeals, accounting for the length of time required to get the matter to trial. By the time the case was tried, plaintiff had dismissed all but high ranking Sheriff's officials including the former Undersheriff. Plaintiff proceeded against the remaining defendants on a civil rights "failure to train and supervise" theory. After almost five weeks of trial in the Central District of the Los Angeles County Superior Court, a jury returned a defense verdict with only one dissenting juror.
 

 

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