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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
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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
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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
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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
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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
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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
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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
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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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