Contra Costa Lawyer, July 2015

Volume 28, Number 4 | July 2015

The High Price of BYOD: Managing Legal Risk for Employers page 6

Employment Law

Is Your Worker an Employee or an Independent Contractor? page 14

Why Make Employees Stand All Day? page 9

JULY 20152

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 3

EDITORIAL BOARDSuzanne Boucher 925.933.1500Patricia Kelly 925.258.9300David Pearson 925.287.0051Samantha Sepehr 925.287.3540Andrew Verriere 415.699.0646James Wu 925.658.0300

CONTRA COSTA

LAWYERVolume 28 Number 4 | July 2015

B A R A S S O C I A T I O N

The official publication of the

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 times online-only - by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to [email protected] CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not neces-sarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

Ericka AckeretDean Barbieri

Oliver BrayMary Carey

Wendy McGuire CoatsMichelle Ferber

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | [email protected]

CCCBA main office 925.686.6900 | www.cccba.org

2015 BOARD OF DIRECTORS

Peter HassReneé LivingstonDavid MarchianoLaura RamseyKatherine Wenger

CO-EDITORSHarvey Sohnen

925.258.9300

Nicole Mills 925.351.3171

BOARD LIAISON Candice Stoddard

925.942.5100

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925.957.5600

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CONTRA COSTA LAWYER

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Emily Day Systems Administrator and Fee Arbitration Coordinator

Nicholas Casper Elva Harding

Philip AndersenJames Wu

Stephen Steinberg

PresidentPresident-ElectSecretaryTreasurerEx Officio

FEATURES

DEPARTMENTS

4 INSIDE | by Patricia M. Kelly

5 PRESIDENT’S MESSAGE | by Nick Casper

20 CENTER | Food From the Bar Comedy Night [photos] Gala Reception Announcement MCLE Spectacular SAVE THE DATE

26 PRO BONO SPOTLIGHT | Gabriela Odell

28 CONTRA COSTA’S NEW PRO BONO WILLS CLINIC | by Verna Haas

30 RESTAURANT REVIEW | by Geoffrey Steele

32 INNS OF COURT | by Matthew Talbot

35 CALENDAR

38 CLASSIFIEDS

THE HIGH PRICE OF BYOD: MANAGING LEGAL RISK FOR EMPLOYERSby JoAnna L. Brooks

WHY MAKE EMPLOYEES STAND ALL DAY?by Harvey Sohnen

KEEPING UP WITH CALIFORNIA REGULATIONS MEANS NEW WORKPLACE POLICIES AND TRAINING by Margaret J. Grover

6

11

9

IS YOUR WORKER AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR?by Mukesh Advani

14

THE MYTHICAL UNPAID INTERNby Michelle Ferber and Brooke Barnum

17

AN OVERVIEW OF EMPLOYMENT ARBITRATION AGREEMENTSby Kevin R. Allen, Esq.

23

JULY 20154

T he work environment has changed dramati-cally over recent years, with employers facing new challenges. For example, employees now use their own personal devices, including cell

phones and laptops, for business. Are employees enti-tled to reimbursement for their costs, such as their cell phone bills, under Labor Code section 2802, which re-quires reimbursement for business expenses?

In “The High Price of BYOD: Managing Legal Risk for Employers,” JoAnna L. Brooks addresses the develop-ing law regarding mandatory reimbursements and the issues emanating from use of personal devices.

In “Why Make Employees Stand All Day?” Harvey Sohnen points to the cases pending in the California Supreme Court as hopeful for providing answers to questions regarding a requirement that employers pro-vide employees suitable seats when the nature of the work reasonably permits. At stake is whether employers can force employees, such as store cashiers or bank tell-ers, to stand throughout their shifts when some or all of the tasks could be performed while sitting.

Margaret J. Grover alerts us to new regulations ap-plying to heat illness prevention and California Family Rights Act (CFRA) leave in “Keeping Up with California Regulations Means New Workplace Policies and Train-ing.” Ms. Grover informs us of the revised California Occupational Safety and Health Administration (Cal/OSHA) regulations which include providing shade, wa-ter and cool-down periods for employees.

She also sets forth the changes soon to be in effect in the CFRA that are designed to address questions which have arisen over the years while the law has been in effect.

However, before reaching these issues, perhaps one needs to step back and analyze the whole situation. Are the individuals involved actually employees who are entitled to the protections of the Labor Code, Wage Orders, Government Code and Cal/OSHA regulations? Perhaps they are independent contractors who do not have such protections. There are benefits to companies who engage independent contractors and cost benefits can be passed on to the customer.

Think of Uber and Lyft, which have taken on the bat-tle over employee versus independent contractor status and is now winding its way through the courts. How-ever, a misclassification can be a very costly mistake, as discussed by Mukesh Advani in “Is Your Worker an Employee or an Independent Contractor?”

Patricia Kelly

inside

Alternatively, perhaps the individuals can be lawful-ly characterized as bona fide interns or volunteers who are not even entitled to any compensation. Michelle Ferber and Brooke Barnum analyze in “The Mythical Unpaid Intern” the stringent criteria to be met if an in-dividual is not to be compensated for his or her services.

Assuming there is a dispute over any of these or re-lated issues, who will decide it? Is there a valid arbitra-tion agreement in effect? In “An Overview of Employ-ment Arbitration Agreements,” Kevin R. Allen raises a myriad of issues to be considered in drafting or enforc-ing such agreements.

Finally, don’t forget that new paid sick leave laws covering nearly every employer in this state have taken effect on July 1 of this year, as described in our April edi-tion.

In addition to our employment related articles, we are pleased to announce the Pro Bono Committee’s recogni-tion of Gabriela Odell, who has donated many years of service to Contra Costa Senior Legal Services. This issue’s Pro Bono Spotlight reflects a lively interview with Ms. Odell. We also include Matthew Talbot’s article on the final Inns of Court meeting for the 2014-2015 year and a restaurant review by Geoff Steele. s

Patricia Kelly is a partner at the Law Offices of Sohnen & Kelly in Orinda, which has substantial expe-rience addressing a broad range of employment issues, including wage and hour class action lawsuits, disci-plinary actions, discrimination, harassment, wrong-ful termination and severance agreements. They rep-resent primarily small companies and individuals.


es—where carriers illegally deny or delay payment of claims—can leave individuals who are in need without compensation.

In personal injury cases, plaintiffs may have mounting medical bills and future medical costs that can only be met once a case is conclud-ed, and this leaves them in a lurch. Some of these plaintiffs are faced with a Hobson’s choice, deciding to accept an inadequate settlement just so immediate needs are met.

The failure to resolve financial claims between large enterprises can cause serious economic harm that is difficult to quantify. Busi-nesses and public entities are faced with mounting financial obliga-tions as claims pile up without resolution, which makes for a more uncertain business climate and can affect budget planning, including stalling hiring decisions.

There are also intangible, non-financial consequences that play

president’s message

Nick Casper CCCBA Board President

Much has been written about the California court funding crisis, now a seven-year-old

calamity in which the beleaguered third branch of government has seen its budget slashed by over $1 billion.

The repercussions have been far-reaching, with over 200 courtrooms and 52 courthouses closed across the state, along with the loss of thousands of court staff.

One effect of the cuts experienced by state courts, including those here in Contra Costa, has been the long delay in civil trial settings, with tri-als sometimes being set nearly two years down the road.

Although the consequences of such delays are not as disastrous as those afflicting some courts, such as reunification hearings and child support orders delayed months in the family courts, civil delays do have an impact that affect Califor-nians seeking the “last resort” rem-edy that courts are intended to offer.

Many civil cases are filed by in-dividuals who require judicial in-tervention into matters that cannot wait years for resolution. People seeking redress for abysmal living conditions—no working heat, or pervasive mold, for example—may not have the financial luxury of waiting years for a trial, choosing instead to abandon the case and up-root their families.

The problem is compounded for those who live in rent-controlled apartments, leaving families no choice but to move out of cities in which they have been priced out. Delays in insurance bad faith cas-

out due to trial delays. For individ-ual plaintiffs, litigation is a stress-ful exercise, and having the process stretched out over years can seem oppressive.

Conversely, defendants also have cases hanging over their heads for great lengths of time; in a case of a defendant wrongfully accused of tortious conduct, they are denied a timely opportunity to clear their name.

Furthermore, in many civil cases, evidence preservation becomes precarious: witnesses have fading memories, lose their resolve to tes-tify or simply disappear.

The courts are currently in triage mode and are doing what they can with limited resources. Governor Brown’s recent revised budget will pump some money back into the court system, including $90 million to trial courts.

While this restoration of funding is a positive sign, the phrase “too little, too late” comes to mind. Until funds are restored to reopen closed courtrooms, fill judicial vacancies and rehire court staff, the ripples from the crisis will continue to be felt for years to come, including civ-il cases gathering dust. s

As an associate with Casper, Mead-ows, Schwartz & Cook since 2007, Nick Casper represents injured individuals in cases involving cat-astrophic injury, wrongful death, medical malpractice, employment discrimination/harassment and civil rights violations. Nick has been lead counsel in five civil jury trials.

Civil Cases Gathering Dust

JULY 20156

The High Price of BYOD:

Managing Legal Risk

for Employers

B ringing your own device (BYOD) has been the single most radical shift for em-ployers since computers in-

vaded the workplace. BYOD, as the saying implies, means employees use their own personal device in-stead of an employer-provided de-vice to perform work.

Today, 90 percent of private em-ployers report they have BYOD in some form, and nearly 70 percent express positive attitudes toward the trend.

The Court of Appeal’s recent deci-sion in Cochran v. Schwan’s Home Service, Inc.,1 threatens to reverse this trend. BYOD comes with a cost-ly new price tag for California em-ployers.

Colin Cochran brought a putative class action on behalf of himself and 1,500 customer service managers, claiming they were not reimbursed for work-related use of their per-sonal cell phones. Cochran did not actually incur any out-of-pocket ex-penses because he used a cell phone covered by his girlfriend’s plan and she paid the bill.

Nevertheless, he alleged vio-lation of Labor Code section

2802; Business and Profes-sions Code section 17200

and the Private Attorney General Act (PAGA). The trial court denied class certification because it determined indi-vidualized inquiries

regarding each em-ployee’s cell plan

would be neces-sary to deter-

mine liabil-ity.

by JoAnna L. Brooks

The appellate court reversed the trial court’s denial of class certifica-tion, stating its underlying legal as-sumptions were erroneous, namely, the assumption an employee must suffer an expenditure or loss to re-cover under Section 2802.

The Court of Appeal held em-ployers must reimburse employees for required use of their personal phones for work-related calls, and must reimburse a reasonable por-tion of their cell phone bills for such use under Section 2802—re-gardless of whether the employee incurs any additional out-of-pocket expense from the work-related us-age. The individualized details of the employee’s cell phone plan do not factor into the liability analysis, only damages.

So why is Cochran so costly for employers? Section 2802 is not new law. It has always required employ-ers to reimburse employees for “nec-essary” work-related expenditures. In previous Section 2802 cases, how-ever, the courts analyzed the actual harm to the employee—whether the employer wrongfully failed to reimburse out-of-pocket expenses it knew or should have known were reasonably incurred on the employ-er’s behalf.

Here, the court explained Section 2802 is not limited to reimburse-ment for out-of-pocket expenses but is intended to prevent employ-ers from receiving a windfall by passing operating expenses on to the employee. The Cochran case


suggests reimbursement is always required when the employer know-ingly reaps the benefits of BYOD.

The ruling applies to work-related cell phone expenses, but could easi-ly be applied to smartphones, Wi-Fi, apps, software, laptops, tablets and other personal computing devices used to access data in the cloud and on network servers.

The sweeping nature of the Co-chran decision in a world full of emerging technology leaves many unanswered questions. How does the employer determine what de-vices must be provided or require reimbursement? How does the em-ployer calculate the reimbursement owed? Employers need to answer these difficult questions now, or risk facing the legal consequences later on.

Due to the complexity of the mod-ern workplace, there is no one-size-fits-all approach to answering these questions. The following are the top five steps for employment attorneys to keep in mind when advising em-

ployers on BYOD and reimburse-ment policies:

1. Identify the technology neces-sary for the employees to do their jobs. For each job, ask the following: Does the job require use of a computer, phone or other device? What software or applications does the employee utilize or access to complete job tasks? Is the employee expected to perform the work at home or while traveling? Is the employ-ee expected to respond to calls, emails or texts while outside of the office?

2. After identifying the necessary technology, weigh the costs and benefits of employer-issued technology versus BYOD. De-pending on the employer’s cul-ture and needs of the business, it may be feasible to eliminate BYOD. Among the benefits, employer-provided technology enables the employer to select the devices and applications, ensure protection of stored busi-ness information, and control

usage terms and cost. Provid-ing necessary technology also reduces the risk of exposure by avoiding later disputes con-cerning the handling of BYOD reimbursement.

3. If the employer has an exist-ing BYOD program, determine whether the use of a personal device is required or volun-tary. If an employee’s use of a personal device is entirely vol-untary, an employer may not need to reimburse the expense. Post-Cochran, counsel should explain the risk of shifting the costs of necessary technology to an employee. At a minimum, employers taking this approach must be able to prove the em-ployee had the option of using employer-provided technology. Existing BYOD policies may need to be modified to ensure the employee made an in-formed decision before incur-ring the costs of BYOD.

4. If BYOD is required, a number of methods should be explored

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for calculating the reasonable portion of the reimbursement, such as: (1) reimbursing total cost of the device, applications and service plan; (2) paying a fixed lump sum amount based on estimated cost of similar de-vices and work-related usage; or (3) reimbursing the employ-ee for a percentage of the actual device cost and monthly usage. Any of these reimbursement methods require research re-garding the cost of the applica-ble technology, service charges and anticipated usage by the employer’s workforce. If the employer is offering anything less than reimbursement for the total cost of the device and service plan, there needs to be good faith support for the em-ployer’s method for calculating

The High Price of BYOD,

cont. from page 7

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a reasonable portion of the re-imbursement. The BYOD policy should allow for adjustments to the methods for calculating re-imbursement to accommodate new technology and/or fluctu-ations in usage depending on the employee’s job.

5. Assess overall risk of past practices with the employer. Formulate a plan to estimate and reimburse past required expenses within the applica-ble statute of limitations as a means to limit exposure. s

JoAnna Brooks is a Shareholder with Littler Mendelson, PC, in its Walnut Creek office where she represents employers in all aspects of employment law. Ms. Brooks regularly defends management in class action matters. If you have any questions, you can contact her directly at (925) 927-4530 or at [email protected].

1 Cochran v. Schwan Home Services, Inc., 228 CalApp.4th 1137 (August 12, 2014).


Why Make Employees Stand All Day?by Harvey Sohnen

M aking employees stand all day can have harmful health con-sequences, but many

employers continue to refuse to al-low employees to sit down to per-form any of their duties.

The California Supreme Court has recently been called on to interpret state regulations concerning a re-quirement that employers provide employees suitable seats when the nature of the work reasonably per-mits use of seats. At stake is whether employers can force employees to stand throughout their shifts when some or all of the tasks could be per-formed while sitting.

The regulations in question are contained in Industrial Welfare Commission (IWC) Wage Orders, seen posted on the walls of many workplaces, which regulate the wages, hours and working condi-tions of most California employees. There are 17 such Wage Orders. Sec-tion 14(A) of each of the Wage Or-ders provides:

“All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

Although the requirement of seat-ing is not new, enactment of the Pri-vate Attorney General Act of 2004 (PAGA), Labor Code section 2698 et seq., enabled private litigants for the first time to enforce the law.

They can do this through repre-sentative actions (and class actions),

with the plaintiff/employee stand-ing in the shoes of the state of Cali-fornia to enforce the law.

The first major employee victory in this area came in 2010 in Bright v. 99 Cents Only Stores, 189 Cal. App. 4th 1472. Bright was a seating claim brought as a class action by cashiers at retail stores who were to stand for their entire shift at their registers.

The trial court dismissed the suit-able seating claim. The employees appealed and the California Court of Appeal, 2nd District, gave employ-ees the green light to bring suitable seating claims under PAGA and seek penalties under that law.

The penalties are $100 per pay pe-riod for each aggrieved employee for the initial violation. In the case of a subsequent violation, the pen-alties go from $100 to $200. Seven-ty-five percent of the penalties go to the state, for whom the action is brought, and 25 percent to the em-ployees. A successful plaintiff can also recover an award of attorney’s fees.

The first suitable seating class action to go to trial was Garvey v. Kmart Corporation, U.S.D.C., North-ern District of California, in 2012. It resulted in a decision in the em-ployer’s favor. The court found a le-gitimate basis for requiring employ-ees to stand because they had to convey a “ready-to-assist” attitude to customers, consistent with the company’s goal of projecting the ap-pearance of efficient service.

Surprisingly, the court criticized the stools that plaintiffs had pro-posed, and commented that if “lean stools” had been proposed, the case might have gone the other way.

If nothing else, Garvey led law-yers on a hunt for furniture catalogs to figure out that a lean stool seems to be a cross between a step ladder and a bar stool.

Notwithstanding this odd result, there has been a steady stream of seating cases, in many cases against retail stores, where cashiers stand all day, and against those banks that require tellers to stand unre-mittingly at the counter.

This author’s firm, the Law Of-fices of Sohnen & Kelly, was coun-sel for the plaintiffs in Brooks v. U.S. Bank, a case for supermar-ket branch tellers of U.S. Bank, in which claims for seating and rest breaks settled for $1.9 million in 2014. Also in 2014, Gallardo v. AT&T Mobility was settled for retail sales staff for $1,050,000. In 2011, Church v. GameStop was settled for video game retail store employees for $750,000.

In 2013, the 9th Circuit Court of Appeals was confronted with is-sues about what the suitable seat-ing mandate means in Kilby v. CVS and Henderson v. JP Morgan Chase Bank, pending class action.

Kilby involves cashiers at CVS Pharmacy, with Wage Order 7 ap-plicable. Henderson involves tell-ers at JPMorgan Chase Bank, with

JULY 201510

employees stand without letup will have some justi-fication ready—such as “customer perception.” What weight is to be given to these employer justifications for requiring standing?

The physical layout of the workplace raises a cost is-sue. If the employer has designed its space so that there is no room for sitting, can the cost of modification justify not providing seats?

Finally, should seating standards be determined on a one-size-fits-all basis, or should they be tailored to who is actually in the job? For example, can employers make judgments about which employees are most and least in need of seating by virtue of age and physical charac-teristics?

The third question seems to be an echo of the curious “lean stool” twist in Garvey. For an employee to prevail, does he or she have a burden to find the right chair or stool in a furniture catalog?

The answers to these questions will have a significant effect on the California workplace. The United States and California Chambers of Commerce and AARP have filed amicus briefs in Kilby and Henderson. As noted by AARP, while prolonged standing is associated with the development of musculoskeletal disorders in workers of all ages, it can be particularly difficult for some older workers, which is the nation’s fastest growing segment of the working population. So why are employers so re-sistant to allowing employees to sit?

While no date has yet been set for oral argument of Kilby and Henderson, an announcement of that argu-ment may well occur very soon. The decision will let us know where California workers stand—or sit. s

Harvey Sohnen is co-editor of the Contra Costa Law-yer magazine. He is a principal in the Law Offices of Sohnen and Kelly in Orinda, where the focus of his practice is wage and hour law class actions, and other employment and commercial cases.

Why Make Employees Stand,

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the same language of Wage Order 4 applicable. The 9th Circuit requested that the California Supreme Court an-swer three questions about these provisions. In 2014, the California Court accepted the request (Case S215614).

The three questions in Kilby and Henderson are:

(1) For purposes of IWC Wage Order 4-2001 § 14(A) and IWC Wage Order 7-2001 § 14(A), “(1) Does the phrase ‘na-ture of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employ-ee’s duties? (a) If the courts should construe ‘nature of the work’ holistically, should the courts consider the en-tire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reason-ably allow the use of a seat?

“(2) When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts con-sider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical charac-teristics of the employee?

“(3) If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A)?”

The first question addresses a reality of many jobs—some tasks can be performed sitting while others may require standing. For example, even for the most sed-entary of secretarial jobs, the employee will have to go across the room occasionally to take papers out of a printer or obtain a file. So what proportion of the tasks need to be “sitting” tasks before the suitable seating re-quirement is triggered?

The second question mixes three separate points. One can be assured that any employer who makes its

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Keeping Up with California Regulations

Means New Workplace Policies and Training

R egulations applying to Heat Illness Prevention and governing leave un-der the California Family

Rights Act have recently been up-dated. California employers should examine their policies and training programs to ensure that both are in compliance.

It’s Getting Hot in Here

The Heat Illness prevention regu-lations promulgated by California Occupational Safety and Health Administration (Cal/OSHA) were updated effective May 2015 (8 Cal. Code of Regs. § 3395).

The new regulations provide ad-ditional protections for employees working in the heat. In addition, the regulations now require employers to articulate plans for emergencies and to train all employees. The en-hanced protections include:

• Shade Requirements: Shade is required whenever the work site temperature exceeds 80 degrees. If there is no available shade on the work site, the employer must pro-vide a shade structure. Employers are to monitor the temperature and be prepared to provide shade.

When shade is required, it must be in a location that does not “deter

by Margaret J. Grover

or discourage access or use.” Em-ployees should not have to cross traffic or waterways to reach the shade. Shade must be sufficient for all employees on a meal or rest break to sit in the shade at one time. The regulations recognize that breaks may be staggered, so that the shade need not be large enough to accommodate all em-ployees at the work site at once.

• Water: Water must kept as close to the employees as practicable. It must be fresh, pure and suitably cool. The water should be cooler than the air temperature, but not cold enough to cause discomfort.

• Cool-down Periods: Employees must be allowed and encouraged to take a preventive cool-down rest when they feel the need to do so to protect against overheating. Employees who take a cool-down rest are to be monitored and en-couraged to remain in the shade.

The cool-down rest must allow the employee at least five minutes in the shade, and the employee may not be ordered back to work until signs of heat illness have abated. If the employee shows or reports symptoms of heat illness, first aid or emergency care is to be admin-istered.

High-heat procedures are new to the regulatory scheme. When the temperature exceeds 95 degrees, ad-ditional protections are to be imple-mented.

These include effective observa-tion or monitoring for heat-related illness, improved communica-tions and designated procedures for calling emergency medical as-sistance. In addition, the high-heat procedures are to be reviewed in a pre-shift meeting, during which all employees must be encouraged to drink plenty of water and take cool-down rests, when needed.

JULY 201512

California Regulations,

cont. from page 11

Emergency response procedures are also required under the new regulations. The emergency re-sponse procedures should include ensuring that supervisors recognize the symptoms of heat illness, un-derstand how to prevent progres-sion of the condition and know basic first aid. Emergency response procedures must also include a plan for effective emergency communi-cations.

Employers are now required to train all employees, with supervi-sors receiving more detailed train-ing. In addition, employers are required to publish a heat illness prevention plan in both English and the language understood by the majority of employees.

Cal/OSHA is publicizing the changes. During any inspection, including those following a serious workplace injury, the agency will review the heat illness prevention policy for compliance.

We Are Family

The California Fair Employment and Housing Council has changed the regulations governing leave under the California Family Rights Act, California Government Code § 19245.2 (CFRA). Many changes adopted are to regulations imple-menting the federal Family and Medical Leave Act, 29 U.S.C. sec. 2601, et seq. (FMLA).

The CFRA amendments are con-tained in Title 2, California Code of Regulations, Article 11, § 11087 et seq., and became effective July 1, 2015. Key changes include:

• Joint Employers: Determina-tion of whether or not a joint em-ployment relationship exists re-quires examination of the entire relationship and will generally exist: (1) where the entities have agreed to share employees; (2) where one employer acts in the

interests of the other with respect to the employee; or (3) where there is common control between the businesses.

• Employee Work Site Defini-tion: Determination of whether an employee works within 75 miles of 50 employees and is, therefore, eligible for leave, has been refined. A work site can refer to a single location or a group of contiguous locations. If the em-ployee lacks a fixed work site, the employee’s assigned home base, from which her or his work is as-signed, or to which the employee reports, is used, even if not in the same state.

• Leave Eligibility: For employ-ees who begin leave before hav-ing completed the 12 month length of service requirement for eligibility, if the leave would oth-erwise qualify for protection un-der the CFRA, the time off counts toward the length of service.

Thus, an employee who works full time for 11 months, then takes workers’ compensation leave would not be eligible for CFRA leave until the anniversary of her or his hire date. The first month of time off would not be protected under CFRA, nor would it count against the employee’s leave en-titlement. Once the employee’s anniversary date passes, she or he would be eligible for the full 12 weeks of CFRA leave.

• Employer’s Time to Respond to Leave Request: Under both state and federal laws, the em-ployer now has five business days to respond to an employee’s request for leave.

• Certification of Need for Leave: An employee must be given not less than 15 days to provide certification. The request for certification must advise the employee of the consequences of failure to provide adequate certi-fication.

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Absent extenuating circumstanc-es, if the employee fails to provide certification within 15 days, the employer may deny CFRA protec-tions for leave after the 15 days, until the employee provides a sufficient certification. If the em-ployee never produces the cer-tification, the leave is not CFRA leave.

• Rights on Return: On return from CFRA leave, an employee is entitled to the same or com-parable position. Any compa-rable position should be “virtu-ally identical” to the employee’s former position in pay, benefits, shift, schedule, geographic loca-tion, working conditions, privi-leges, perquisites and status. The position must involve the same or substantially similar duties and responsibilities.

• Key Employee Provisions: The regulations provide substantial clarification to provisions allow-ing an employer to deny rein-statement to a “key employee,”

including a test for determining whether an employee is a “key employee” and the employer’s notice obligations.

• Return to Work: An employer may not require an employee to undergo a fitness-for-duty exami-nation as a condition of an em-ployee’s return. After an employ-ee returns from CFRA leave, any fitness for duty examination must be job-related and consistent with business necessity.

• Use of Paid Time Off: The regu-lations detail when an employer may require use of accrued paid time off, and differ depending on the reasons for the leave. One area to note is that Paid Family Leave to care for the serious health con-dition of a family member or to bond with a new child is not “un-paid leave.” The employer may not, therefore, mandate the use of any accrued paid time off.

• Health Insurance: Detailed information is provided regard-

ing when and how an employer should collect the employee’s portion of health care premium, and what is required to terminate benefits for non-payment.

• Retaliation Protections: Ad-ditional detail is provided about the scope and nature of protection against interference with CFRA rights and retaliation.

• New Notice and Certification Requirements: The regulations add new notice requirements and a new medical certification form.s

Maggie Grover has been prac-ticing employment law for more than 25 years and currently leads the employment practice group at Oakland’s Wendel Rosen Black & Dean, LLP. Maggie has represented both employers and employees, and enjoys helping parties resolve disputes as a mediator.

JULY 201514

Is Your Worker an Employee or

an Independent Contractor?

F ew areas in employment law are subject to as much debate and factual analysis as to when an individual is an independent contractor and not an employee. Companies occasionally classify

their workers as independent contractors because the cost savings and other benefits are significant.

However, the law imposes considerable liabilities and penalties when an individual is treated as an indepen-dent contractor and later found to be an employee, espe-cially when misclassification is intentional.

The cost savings of classify-ing a worker as an independent contractor are substantial. For example, the company does not have to pay an employer’s por-tion of Social Security, Medi-care, federal and state unem-ployment taxes or pay workers’ compensation insurance, em-ployee benefits, the minimum wage or overtime.

The company does not need to comply with other wage and hour law requirements such as providing meal and rest peri-ods and reimbursement for business expenses. In addi-tion, the company is not subject to the requirements of the Immigration Reform and Control Act of 1986, work-ers have no protection under many state and federal an-tidiscrimination laws, and such workers do not subject the company to vicarious liability for their acts.

However, misclassifying a worker as an independent contractor creates potential liability for employment taxes and penalties, including monies that should have been withheld from wages as FICA and income taxes. If individuals are found to be employees, the Employ-ment Development Department (EDD) will assess the employer for unemployment insurance contributions, disability insurance contributions and state income tax withholding amounts.

by Mukesh Advani

Further liabilities are imposed, including for overtime payments and other wage claim liability, workers’ com-pensation insurance premiums (along with potential li-ability for workplace injuries), and other civil penalties and fines. Reclassified workers may also be entitled to coverage and benefits under employee benefit plans. An employee or an administrative agency may file suit to recover back wages and an equal amount in liqui-dated damages, plus attorney fees and court costs. The law also imposes significant penalties on any employer who “willfully” misclassifies an individual as an inde-

pendent contractor.

California law starts with a rebuttable presumption that a worker is an employee.1 There is also a rebuttable presump-tion that where a worker per-forms services that require a li-cense pursuant to Business and Professions Code Section 7000, et seq., or performs services for a person who is required to ob-tain such a license, the worker is an employee and not an in-dependent contractor.2

There is no established rule or definition of when a worker may be considered an independent contractor. Rather, it depends upon the individual facts and cir-cumstances.

An employer is not immune from liability for misclas-sification simply because the worker signed a written contract agreeing to be treated as an independent con-tractor, wants to be treated as an independent contrac-tor, works part time, does assignments from time to time, is paid only by commission, has no supervision or works for more than one organization, or is issued a 1099 rather than a W-2 form.

Even a professional, such as a lawyer, a physician or an accountant could be either an employee or an inde-


pendent contractor depending upon the facts and cir-cumstances.

California courts and the Division of Labor Standards Enforcement (DLSE) consider a number of factors set forth in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341. All of these factors, called a “multi-factor” test or “economic realities” test, are re-quired to be considered but none of them are control-ling.

The principal test of an employment relationship is this: Whether the person to whom service is rendered has control or the right to control the worker both as to the work done and the manner and means in which it is performed. However, the “control” test may not be ap-plied in isolation given the “infinite variety of service arrangements.”3

Additional factors that may be considered are:

“(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occu-pation, with reference to whether, in the locality, the work is usually done under the direction of the princi-pal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools and the place of work for the person doing the work; (e) the length of time for which the services are

to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.”4

It is important to note that the same individual may be considered an employee for purposes of one law and an independent contractor under another. For example, the DLSE will often use the five prong “economic reali-ties” test to decide the issue.

However, in a separate matter before a different state agency with the same parties and same facts, that agen-cy may be required to use a different test (such as the control test) which may result in a different determina-tion. The IRS uses its own “20 Factors” test, although “the right to control” is the principal test under the IRS rules as well. Moreover, the IRS weighs the factors differently from its California counterparts.5

While there are clearly great advantages to an orga-nization classifying a worker as an independent con-tractor, the consequences of getting it wrong could be severe. At the same time, a company should not be hesi-tant to classify a worker as an independent contractor where the facts and circumstances so warrant.

Each working relationship must be thoroughly re-searched and analyzed. The company should assume all

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workers are employees unless they clearly meet all legal requirements and pass all tests various federal and state agencies use for proper classifi-cation of independent contractors. s

Mukesh Advani is Of Counsel to Dental & Medical Counsel and prac-tices in the areas of employment law, including wage and hour and wrongful termination litigation matters, insurance coverage mat-ters for policyholders, general civil litigation and appellate law. He may be reached at [email protected].

1 Labor Code § 3357.

2 Labor Code§ 2750.5. The California Su-preme Court recently granted review in Dynamex Operations West, Inc. v. Su-perior Court (SC S222732.rev. granted 1/28/15) in which the 2nd District Court of Appeal held that the test for determining whether an individual is an independent contractor or employee will depend upon whether the individual has alleged a vio-lation of a wage order provision. If such an allegation has been made, then the defini-tions of “employ” and “employer” in the wage order apply to determine whether a worker is an “employee” or an indepen-dent contractor. This decision may be con-trary to well-established “multi-factors” or “economic realities” test the courts tra-ditionally consider to analyze employee versus independent contractor status. S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341.

3 Borello at 350. This “multi-factor” test was more recently reaffirmed by the Supreme Court in Ayala v. Antelope Valley News-papers, Inc. (2014) 59 Cal.4th 522.

4 See Ayala v. Antelope Valley Newspa-pers, Inc, supra, at p. 532, quoting Borello, supra, 48 Cal.3d at p. 351. 5 The Supreme Court may provide some clarity on this in Dynamex Operations West, Inc. (See footnote 1, supra.)

Independent Contractor,

cont. from page 15


The Mythical Unpaid Intern by Michelle Ferber and Brooke Barnum

S ummertime is upon us, and that means that there are eager students looking to gain valuable work experience. At first blush, it might seem like re-cruiting an unpaid summer volunteer or intern is

the perfect “win-win.”

From an organizational perspective, there is always work to be done and having an enthusiastic individual do it for zero dollars sounds like the ultimate cost-savings measure. From the intern’s point of view, it could be the proverbial “foot in the door” or at least a worthwhile re-sume boost.

But, and it’s a big “but,” titles do not determine the legal relationship between an individual worker and a com-pany. Simply calling an individual an intern or a volun-teer will not allow a company to avoid the requirements of the employer-employee relationship, which includes the payment of wages and following all applicable Labor Code requirements.

Who Legally Qualifies as a Bona Fide

Volunteer or Intern?

It’s true that certain individuals in specific situations can fall outside of the sweep of wage and hour require-ments. However, the law carefully limits who qualifies as a volunteer or intern. And that’s why the unpaid in-tern is a mythical creature in the context of most organi-zations.

A person may be categorized as a volunteer if she or he donates her or his services, without contemplation of payment, for humanitarian, public service or religious reasons. This means that certain public agencies and cer-tain nonprofit organizations may have volunteers.

Those organizations still must ensure that there is no expected payment of any kind in exchange for the vol-unteered services. Payment is an expansive concept as it includes in-kind services like housing or meals, in addi-tion to cash.

However, since for-profit organizations are not hu-manitarian, public service oriented, or based on religious service, this means that the law does not permit them to have volunteers. In other words, there is no such thing as a volunteer at a for-profit company.

JULY 201518

What about interns? Well, the law stringently governs who counts as an intern. True interns under the law are actually “trainees.” The Department of Labor identi-fies six legal criteria that must be applied to determine whether a trainee is exempt from wage laws. The criteria are as follows:

1. The training, even though it includes actual op-eration of the employer’s facilities, is similar to that which would be given in a vocational school.

2. The training is for the benefit of the trainees or stu-dents.

3. The trainees or students do not displace regular em-ployees, but work under their close observation.

4. The employer derives no immediate advantage from the activities of trainees or students, and on occasion the employer’s operations may be actually impeded.

5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period.

6. The employer and the trainees or students under-stand that the trainees or students are not entitled to wages for the time spent in training.

The criteria are applied by looking at the totality of the circumstances. No one factor is more important than any other, and the particular circumstances of a given trainee are taken into account. This means that there is very little predictability about whether a particular “trainee” is or is not properly classified as an employee: A dangerous reality for employers!

In addition, the above criteria are specific and de-manding. It is clear that the law is written so as to en-sure that a trainee program is set up first and foremost to benefit trainees. The law is less concerned with the benefits that trainees provide to employers. In fact, any benefits to the employer are treated as incidental. And looking to the fourth factor, if an organization derives any immediate advantage from the activities of an in-tern, then this fact alone will likely transform an intern into a legal employee.

Another important point to note is that interns can-not displace regular employees, so if an organization is bringing in “interns” at the same time that it is cutting back employees, this criterion weighs against the em-ployer. This factor is geared towards protecting the job stability or prospects of employees.

Where Does this Leave an Organization that

Wants to Bring on Summer Help?

Assuming that you still want to bring on summer help (or temporary help any time of the year), then reflect on why you want to do so. If the answer is to benefit your organization, then the best practice is to hire employees and comply with all the wage and hour requirements that apply.

Even one legal claim filed against the organization will more than likely cost more than the anticipated savings of illegal volunteer positions or internships. In the state of California, wage violations carry liquidated damages. If you tack on to that exposure the other civil penalties, attorneys’ fees and other potential wage dam-ages, the potential exposure to an employer’s pocket-book is incredibly high.

Additionally, a single claim can quickly turn into a class action if you have hired multiple incorrectly clas-sified “interns” over the years. s

Michelle Ferber is the Managing Shareholder of Fer-ber Law, P.C., in San Ramon. Michelle specializes in employment litigation and advice and counsel.

Brooke Barnum is an associate attorney with the firm.

Unpaid Intern,

cont. from page 17

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An Overview ofEmployment Arbitration Agreementsby Kevin R. Allen, Esq.

Youngman & Ericsson 1981 North Broadway • Suite 300Walnut Creek, CA 94596

Tax & EstatE Planning attornEys

Youngman.com (925) 930-6000

W hether drafting an arbitration agreement or advising a client to challenge an exist-ing agreement, employment attorneys need to be familiar with the pros and cons

of arbitration, its requirements and limitations, as well as the legal theories currently available to invalidate such agreements.

From the employer’s perspective, arbitration offers many pros. Although the rules vary depending on the parties’ agreement, arbitration typically involves more streamlined discovery and hearing procedures.1 The rules of evidence are more relaxed and the awards are usually confidential. If the employee is especially sym-pathetic, an arbitrator might be less inclined to issue an emotional ruling than a jury.

However, there are downsides. An arbitrator’s award is not usually subject to appeal and a trial court can only refuse to confirm an award and enter judgment if there was fraud or corruption by the arbitrator, undisclosed grounds for disqualification, or the arbitrator refuses to consider evidence or provide sufficient opportunity for a hearing.2

From the employee’s perspective, one of the largest concerns seems to be getting an impartial arbitrator. The accepted wisdom is that an em-ployer and his or her firm are much more likely to have had someone ap-pear in front of the arbitrator in the past and to have repeat business for the arbitrator than a plaintiff and his or her attorneys.

There also is some empirical data that employers tend to fare better in arbitration than employees.3

Before an arbitration agreement can be enforced, there must be evidence of an agreement between the parties to arbitrate. This is usually an easy burden, but can pose problems for employers who do not maintain adequate records or who rely on electronic signatures.4

Whether a particular dispute is arbitrable is presump-tively a question for the court to decide absent “clear and unmistakable” evidence that the parties agreed that the arbitrator would decide this question.5 However, if the clause incorporates a set of arbitration rules which confers upon the arbitrator the power to determine his or her own jurisdiction, the parties “clearly and unmis-takably” agree to arbitrate whether a given dispute is arbitrable.6

Some of the more widely discussed arbitration cases involve class actions and class action waivers. In 2010, the Supreme Court of the United States (SCOTUS) issued its decision in Stolt-Nielson S.A. et al. v. Animalfeeds In-ternational Corp.,7 holding that “an implicit agreement to authorize class-action arbitration … is not a term that the arbitrator may infer solely from the fact of the par-

JULY 201524

Iskanian v. CLS Transportation Los Angeles LLC held that an employee’s right to bring a PAGA action is un-waivable and not preempted by the Federal Arbitration Act (FAA).13 A PAGA claim does not need to be certified and is not a class action, so it was unclear whether they could be waived.

California Appellate Courts have largely followed Is-kanian14 and the United States Supreme Court has re-fused so far to take the question up on appeal.15 How-ever, U.S. District Courts have largely ignored it, instead holding that the FAA preempts PAGA and allows for such a waiver.16 Many expect the U.S. Supreme Court to weigh in on the issue eventually.

Courts do not enforce arbitration provisions that are “unconscionable.”17 A party must show both procedur-al and substantive unconscionability, but on a sliding scale: “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is un-enforceable, and vice versa.”18

Procedural unconscionability concerns the condi-tions and manner in which the contract was entered into and negotiated.19 Although there are several factors that can give rise to such a finding,20 the most common is a showing that the agreement was drafted by the em-ployer, provided to the employee as a condition of em-ployment, and that there was an absence of meaningful choice to the employee regarding its terms.21

Other issues include whether or not the agreement identifies the ap-plicable rules for any would-be ar-bitration proceeding.

Substantive unconscionability is present when the terms of the appli-cable agreement are overly harsh or one-sided.22 Examples include one-way arbitration provisions; short-ened deadlines for making arbitra-tion demands, including deadlines shorter than the statute of limi-tations; limitations on discovery that unduly impact the employee; and limitations on attorney fee awards. s

Kevin R. Allen, Esq., is the prin-cipal of the Allen Attorney Group in Walnut Creek. He represents employees and small business cli-ents in trial and arbitration with a strong emphasis on wage and hour and class action issues and trade se-cret litigation.

Northern CaliforniaMediator / Arbitrator

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Roger F. Allen

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ties’ agreement to arbitrate.”8 An agreement to arbitrate “all claims,” or that is silent about class arbitration, is typically not enough.

The general principle is easy to state: An individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. An individual is not an independent contractor if he or she performs ser-vices that can be controlled by the payer. This applies even if the individual is given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.

In 2011, SCOTUS issued its decision in AT&T Mobility v. Concepcion,9 which allowed for class action waivers in arbitration agreements10 and invalidated state laws that singled them out.”11 Challenges continued to be permit-ted if based on a “generally applicable contract defense, such as fraud, duress or unconscionability.”12

However, in 2014, the California Supreme Court held that a waiver of Private Attorney General Act (PAGA) claims runs contrary to California’s stated public policy in having its labor code provisions enforced through pri-vate individuals.

Arbitration Agreements,

cont. from page 23


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1 See e.g., American Arbitration Associa-tion’s Employment Arbitration Rules.

2 See Cal. Code of Civ. Proc. § 1286.2. The FAA includes similar grounds for vacating an arbitration award. See 9 U.S.C. § 10.

3 Colvin, A. J. S. (2011). An empirical study of employment arbitration: Case out-comes and processes [Electronic version]. Retrieved June 4, 2015, from Cornell Uni-versity, ILR School site: http://digitalcom-mons.ilr.cornell.edu/articles/577.

4 Ruiz v. Moss Bros. Auto Group, Inc., Court of Appeal, 4th Appellate Dist., 2nd Div. (2014).

5 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45 (1995).

6 Oracle Am., Inc. v. Myriad Group A.G., 724 F.3d 1069, 1071 (9th Cir. 2013).

7 Stolt-Nielson S.A. et al. v. Animalfeeds International Corp., 130 S.Ct. 1758 (2010).

8 Id.

9 AT&T Mobility v. Concepcion, 563 U.S. 321 (2011).

10 Id. at 1742- 43.

11 Concepcion overruled the so-called Dis-cover Bank rule that invalidated class-action waivers contained in arbitration agreements since they could be viewed as insulating the employer from liability for wrongdoing involving small sums of damages. Discover Bank v. Superior Court (30 Cal.Rptr.3d 76).

12 Concepcion, 131 S.Ct. at 1746.

13 Cal. Labor Code Section 2698 et seq.

14 Securitas Security Services USA, Inc. v. Superior Court (Edwards), ___ Cal. App.4th ___ (Feb. 27, 2015).

15 On January 20, 2015, SCOTUS denied a petition for a writ of certiorari arising from the Iskanian decision. On June 1, 2015, SCOTUS denied a writ in companion case of Bridgestone Retail Operations v. Brown, Milton, et al.

16 See e.g., Mill v. Kmart Corp., 2014 WL 6706017, *7 (N.D. Cal. Nov. 26, 2014); Langston v. 20/20 Companies, Inc., 2014 WL 5335734, *8 (C.D. Cal. Oct. 17, 2014); Far-dig v. Hobby Lobby Stores, Inc., 2014 WL 4782618, *4 (C.D. Cal. Aug. 11, 2014); Ortiz v. Hobby Lobby Stores, Inc., ___ F. Supp.

3d ___, 2014 WL 4961126, *9 (E.D. Cal. Oct. 1, 2014); Chico v. Hilton Worldwide, Inc., 2014 WL 5088240, *13 (C.D. Cal. Oct. 7, 2014); Lucero v. Sears Holdings Manage-ment Corp., No. 13-CV-1620-AJB-WVG, Dkt. No. 6 (S.D. Cal. Dec. 2, 2014).

17 See e.g., Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83, 99 (2000).

18 Armendariz, supra, at 114; see Gentry v. Superior Court, 42 Cal. 4th 443, 469 (2007); see also Suh v. Superior Court, 181 Cal.App.4th 1504, 1515 (2010).

19 Kinney v. United HealthCare Services, Inc., 70 Cal.4th 1322, 1329 (1999); Nyulassy v. Lockheed Martin Corp.,120 Cal. App. 4th 1267, 1281 (2004).

20 Factors such as inequality of bargaining power, an absence of meaningful choice on the part of the weaker party, oppression and surprise can give rise to procedural unconscionability.

21 Nyulassy, 120 Cal.App.4th at 1281.

22 See Little v. Auto Stiegler, Inc., 29 Cal. 4th 1064, 1071 (2003).

JULY 201526

Pro Bono Spotlight: Gabriela Odell

What is your legal background and what kind of law have you practiced? What did you enjoy most about your time as a practicing attorney and what was challenging for you?

After getting my law degree at UC Hastings, I worked at an employment law boutique for seven years, then was hired by one of the firm’s clients, Lawrence Liver-more National Laboratory. I was the site’s employment and benefits attorney for 20 years before I retired a cou-ple of years ago.

It was probably the most interesting career anyone could want. A good fraction of the 7,000 employees were Ph.D. scientists who did not let you forget that they were smarter than you—until they got sued and learned hu-mility. Eighty percent of the job was political because of the complex reporting relationships to the Regents of the University of California and the United States Department of Energy. You always had to think about “How is this going to upset congressperson so-and-so?” and “How will the headline look?”

But I loved working in an environment where ev-eryone believed they were working towards a mission larger than themselves.

What kind of pro bono/volunteer work do you do? What got you interested in volunteering with CCSLS and the courts?

After I retired, I was determined to continue with public service and to help individuals solve problems. When the court experienced big budget cuts, I volun-teered to be a pro tem judge in small claims and unlaw-ful detainer matters. I also serve on the fee arbitration panel and did some discovery facilitations. At the same time, I got inspired to help older adults experiencing el-der abuse.

I have a parent who has had dementia for nine years and for whom I had to step into a complex situation when she became the victim of financial abuse by a friend/caregiver. Someone told me about Verna Haas and Contra Costa Senior Legal Services (CCSLS). I pre-vailed upon Verna to let me help in the Senior Self-Help Clinic and to work on cases for CCSLS.

Every Tuesday morning, retired Commissioner Judith Sanders and I team up to assist individuals who need help with almost every kind of legal problem. We pre-pare unlawful detainers for seniors who need to throw their parasitic adult children out of their house, conser-

T he Pro Bono Committee of the Contra Costa County Bar Association is pleased to announce its first quarterly Pro Bono Spotlight. Our goal is to recognize indi-viduals in our community who are dedicated to improving civil legal aid and access to justice in our county.

We are fortunate to have individuals who consistently donate their time and talents to help those in need. Our Pro Bono Spotlight is a chance to recognize and thank those individuals who help allow basic services and justice to remain accessible.

Our first Pro Bono Spotlight award winner is Gabriela Odell. Going forward, we will accept nominations on an ongoing basis. The nomination form can be found at http://www.cccba.org/flyer/CCCBA_ProBono_Spotlight_Nomi-nation_Form_E.pdf.

If you are looking for a way to help, but don’t know where to start, CCCBA will host a Pro Bono mixer on Wednes-day, October 28, 2015, at 5:30 p.m. at the Pyramid Alehouse in Walnut Creek. At this event, you will have the oppor-tunity to speak with various legal service providers that need assistance.

An Interview with Gabriela Odell

pro bono


vatorship petitions, elder abuse restraining orders, or a letter to a debt collector. Call it “speed law.” Our tag line is: “We can draft anything in an hour or less.”

I volunteer in the CCSLS “Consult an Attorney” pro-gram at the Antioch Senior Center. I also give presen-tations at senior centers on how to avoid becoming an elder abuse victim.

My most gratifying case was helping a 64-year-old au-tistic man who had been rescued by the fire department after being locked in a room and starved for 10 years while his ex-in-laws took his assets.

He was referred to CCSLS by Adult Protective Services (APS). He literally had no identification, no insurance and his bank account was cleaned out. He was totally alone in the world. Some distant relatives were located. We learned that he had actually inherited several mil-lion dollars. Fortunately, there was someone looking out for him!

We run health care powers of attorney clinics, and now I am assisting a terminal cancer patient in getting her long-term care insurance company to respond. Last year, I became a member of the CCSLS Board of Directors.

What have you gained/learned from taking on this pro bono work?

Aside from learning much law, I am always grounded by the hardships that many seniors, low income or not, endure so stoically. They often have no one else to turn to and are grateful that someone is listening to them and taking them seriously. It’s lovely when they come in and bring you a gift, like fruit from their garden.

I am reminded constantly that our legal system is fail-ing ordinary people, not just the poor. Legal help is unaf-fordable for so many and often the only place they can get resolution is in the self-help centers and small claims court.

Why do you think it is important for attorneys to give back to their com-munities? What advice would you have for an attorney who is interested in taking on pro bono work?

When I was a new lawyer, my law firm was a strong believer in pro bono work, usually assisting nonprofits. My most exciting experience was handling a case for a nonprofit from initial filing through a federal trial while being mentored throughout by a partner.

If well-established law firms could lend their exper-tise and resources to pro bono legal service providers, their associates could get wonderful training and feel like they were doing something rewarding. Volunteer attorneys would not have to invent the wheel every time they are faced with an unfamiliar area of law.

Pro bono work can be challenging because you have to accept the fact that you can only do so much and can’t solve everyone’s problems. That is very hard for me, be-cause I can’t stand not solving a problem!

What is coming up next for you?After spending years managing a family trust, I have

started a career as a licensed fiduciary. I am also con-tinuing to provide limited scope legal services for a low fee. Verna is a great inspiration and I am looking forward to helping her build CCSLS into a strong, well-funded agency.

Here is what Gabriela’s nominator, Verna Haas, Executive Director of CCSLS, had to say about her:

Gaby has been involved with CCSLS since 2013 and from the beginning has been an incredible resource for us and our clients. She brings a wealth of knowledge and experience because of her many years as an em-ployment attorney, but also because of her sensitivity to the issues of aging and older adults.

She has taken on an ever-growing number of assign-ments, from representing a Richmond tenant in litiga-tion to serving on the board. Gaby also finds time to consult with me or offer help when we are short-staffed or are struggling with a complex case. She most recently agreed to meet with a senior who is a shut-in because of illness.

With Gaby’s help, we are able to help more seniors with a wider array of legal problems. We are grateful to Gaby and to the many members of CCCBA who are al-ready volunteering at CCSLS, and welcome anyone in-terested in our program to contact us at www.ccsls.org. s

JULY 201528

Contra Costa’s New Pro Bono Wills Clinic

O n a recent Tuesday after-noon, several law students gathered in a law firm in Concord. Their professor,

Pamela Zimba, herself a practicing elder law attorney, fielded ques-tions from the students.

But instead of beginning a lecture or exploring theoretical issues of the law, they discussed the real prob-lems of clients—seniors in Contra Costa County who had come to the program for help, surrounded by the bustle of a law practice.

This day, and others like it, is the culmination of a joint project by Contra Costa Senior Legal Services (CCSLS), a private nonprofit located in Concord, and John F. Kennedy University College of Law (JFKU) Legal Clinic for Elders.

This new service, the Pro Bono Wills Clinic, provides free simple wills, Advance Health Care Direc-tives and Durable Powers of Attor-ney to low-income residents ages 60 and over. Though still evolving, this program promises to help provide vital legal services to those in need.

Contra Costa’s Aging

Population

In Contra Costa, as in the rest of the nation, we have an aging population that increasingly lacks the resources to meet their basic

by Verna Haas

needs, including the need for legal services. According to the Califor-nia Department of Aging, between 1950 and 2000, the number of older adults increased 194 percent, and is predicted to grow to 13.9 million by 2050.

In Contra Costa, approximately 14 percent of the population is 65 years and over. These people need legal services such as wills and planning for incapacity, but many cannot af-ford them.

A recent measure of the economic well-being of Contra Costa’s seniors indicates that thousands are falling through the cracks. The Elder Index, which attempts to provide a better assessment than the Federal Poverty Guidelines for measuring the eco-nomic health of elders, shows that a

single person ages 65 or over needs at least $26,249 to live in Contra Costa.

Meanwhile, the median Social Se-curity payment is only $12,523 and nearly 75 percent of single recipi-ents of Social Security have no oth-er source of income. So thousands of our county’s seniors have less than half of the income they need to meet their basic needs, much less their needs for legal services.

Yet many seniors need legal as-sistance and counseling regarding matters such as whether to give a relative or friend a Durable Power of Attorney, how to plan for poten-tial incapacity with an Advance Health Care Directive, and whether they need a will or revocable trust and what to include in these vari-ous documents.

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These services, and the docu-ments prepared, can mean the dif-ference between a senior having the ability to maintain some control over his or her finances and health care, and losing that ability.

Often, if a senior has not made these legal decisions, there is no choice if/when the senior needs as-sistance. In such instances, a fam-ily member is forced to petition the court for a conservatorship, which is a very costly and complicated process.

Contra Costa Senior Legal

Services

CCSLS was established in 1976 to address the legal needs of seniors. Its mission is to provide free legal services to Contra Costa seniors, es-pecially to those with the greatest economic and social need.

The program evolved to include three main services: direct services by staff attorneys, coordination of pro bono clinics and education and outreach. Direct services are provid-ed by staff attorneys at the Concord office.

The most common legal issues confronting clients are housing, consumer debt and financial elder abuse. CCSLS also provides legal services through its coordination of over 16 Consult-An-Attorney and Free Wills clinics at senior centers throughout the county.

Many members of the Contra Costa County Bar Association are familiar with this program as they have been volunteers. A list of our current volunteers can be found on the organization’s website at www.ccsls.org.

With the assistance of those pro bono attorneys, CCSLS has provided hundreds of free wills, legal infor-mation and advice to thousands of seniors over nearly four decades. Now, thanks to the new collabora-tion with JFKU, there is a new clinic available in Concord.

The New Clinic

JFKU College of Law also has deep roots in the community, hav-ing been established 50 years ago in Martinez as a nonprofit, private col-lege for working men and women. Graduates of JFKU College of Law have been active members of the lo-cal bar, serving on the board of the CCCBA, working closely with the Contra Costa Superior Court, and volunteering with CCSLS and other nonprofits dedicated to serving the disadvantaged in Contra Costa.

Located in Pleasant Hill, JFKU conducts its Legal Clinic for Elders in which students enroll in the clinic and are registered as certified law students, which allows them to provide legal services to seniors un-der the tutelage of their supervising attorney.

Early last year, CCSLS and JFKU decided that a joint program could provide opportunities to each orga-nization as well as to low-income seniors. This planning resulted in

the formation of the new wills clin-ic, which began as a pilot project in September 2014.

The wills clinic met throughout the fall and winter, and was so pop-ular that it was continued into the spring. The collaboration was a win-win for everyone—students got the opportunity to confront real world issues in the realm of elder law and estate planning, and CCSLS was able to leverage its resources to reach more seniors.

And finally, clients of CCSLS got access to legal services they could not otherwise afford.

The challenges facing low income seniors and their need for legal ser-vices cannot be overstated. JFKU and CCSLS hope that their wills clinic is a small step towards find-ing a solution. s

Verna Haas is the Executive Di-rector of Contra Costa Senior Legal Services.

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JULY 201530

Fleming’s Steakhouseby Geoffrey Wm. Steele, Esq.

W alnut Creek has scads of steakhouses compet-ing for the ever-dwindling clientele seeking the ulti-

mate slab of meat. There’s Vic Stewart’s and Ruth’s Chris Steak House. And then there’s Black Angus and Back Forty Texas BBQ, as well as some establishments that may not specialize in steak, but have a great many choices of such on their menus.

We visited one of the newer steakhouse chains that has taken residence here: Fleming’s Prime Steak-house & Wine Bar. Fleming’s is located near the Cen-tury 14 Downtown Walnut Creek movie theater. There is valet parking and you should take advantage of it, especially on the weekends. Upon entry through dark wooden doors, there is a bar to the right and the hostess stand straight ahead.

Fleming’s must not believe that this first interaction with the hostess is of any importance, for each time I have dined here, the hostess is usually lacking in any charm or manner. Even if you make a request for a spe-cific dining area or type of atmosphere, it might be ig-nored. Apparently, you are seated wherever there is an open table.

The restaurant itself is dark and cloaked in deep col-ored wood, attempting to transport the diner back to a traditional east coast steak and chop house like Delmo-nico’s of New York, Gibson’s of Chicago or Smith & Wol-lensky in Boston. The kitchen is open to the main dining room. There are a few private rooms off the main room.

The wait staff are knowledgeable, friendly and seem to want to help you have a pleasant experience. At any one time, someone will refill your water, refresh or re-

place your drink or provide you with more bread.

One of the cocktails we sampled was a Bourbon Peach Martini, flavored with Maker’s Mark Bourbon that was a little on the sweet side. The wine menu is exten-sive without being pretentious. Most of the wines you would be able to find in just about any restaurant with a good cellar.

The wait staff appears to be reasonably aware of what wine will go well with your meal. Nevertheless, you should stick to what you know and not experiment here because the wines are not cheap.

The menu itself rarely changes, although recently Fleming’s has done away with one of their best appetiz-ers, the mushroom ravioli. The manager of the Walnut Creek restaurant told me this was a corporate decision and not one that he necessarily agreed with, but the item itself was not a great seller.

We started off with the recommended daily chef’s special New England Clam Chowder and the braised rib short plate for appetizers. The clam chowder was sur-prisingly lacking any flavor even though it was laced with bacon and the clams were apparently fresh. The clam chowder at the Walnut Creek Yacht Club is one of

restaurant review


the standards for this area and the Fleming’s version paled in compari-son.

The braised short rib comes on a bed of watery spinach leaves that unfortunately makes the rib also watery. The flavor of the braised rib is subtle without any distinctive flavor profile coming through. We also ordered a side of Lobster Tem-pura that came nice and hot, crispy on the outside, tender and flaky in-side with a delightful sauce, perfect for tempura.

The main courses ordered were the Lemon-Rosemary Brick Chick-en and a Prime Bone-In Ribeye (requested to be cooked medium), along with side dishes (which are an extra charge) of Lobster Mac & Cheese and Sautéed Mushrooms.

The chicken dish was excessively drenched in lemon with a crispy skin and reasonably moist chicken that was mostly because of the lem-on sauce. The flavor of the chicken was almost imperceptible because of the lemon.

The ribeye was a disappointment. The steak was nicely charred, but this masked the fact that the chef

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could not cook it to medium (de-spite an extra shot at it) and the steak itself was almost blood rare. The flavor was provided mostly from the charring, and the meat it-self was not up to the past steaks I have had from Fleming’s.

I ladled the Sautéed Mushrooms onto the ribeye, but they lacked the rich flavor you would expect. They had been lightly sautéed in oil and butter, but clearly had not been cooked with any of the meat juices.

The Lobster Mac & Cheese, how-ever, was terrific. It was burst-ing with flavor with just the right amount crusting on the top, and the lobster was just the right blend with the cheese. It was a complement to both the chicken and the steak, and pretty much saved the main cours-es.

For dessert, we chose Crème Brulée with an accompanying Chantilly Cream. I have had the un-fortunate experience to taste crème brulée made by none other than Ju-lia Child (1912-2004), and I say un-fortunate, because there has never been another to come close to it.

A great crème brulée has the un-derlying custard chilled while the caramel topping, when served, is still bubbling from the torching of the caramel. Most restaurants pre-make their crème brulée dessert and then heat the topping, but are unable to get it bubbling without cooking the custard base.

For what it was, the crème brulée was serviceable. Yet, the accompa-nying chantilly cream was wonder-ful: Light and so tasty with a hint of fresh vanilla bean, but not at all too sweet. It was the perfect pallet cleanser.

You are not likely to get away from Fleming’s for under $100 for a party of two. The bill for this meal was close to $175 prior to the tip. Not cheap, but faster by far than catching the redeye to the Big Apple for a ribeye at Delmonico’s. s

Geoffrey Steele is a partner at Steele George Schofield & Ramos, LLP. He is a civil litigator, with an emphasis on real property and fi-nancial elder abuse.

JULY 201532

inns of court

by Matthew Talbot

Bad Lawyering

is no Fairy Tale

O n May 14, 2015, Judge Flier’s group (starring April Seo, Flavio Carval-ho, Marta Vanegas, Delia

Isvoranu, Pam Marraccini, Clyde Long, John Hourihan, David Ginn and Michael Markowitz) did their presentation on something near and dear to all of our hearts: being retained by clients.

Their presentation, called “Into the Woods,” was a play on the classic children’s stories like “Little Red Riding Hood.” It was nar-rated by the Oracles, Clyde Long and David Ginn.

Judge Flier’s group al-ways puts on a good show. Marta Vanegas and Flavio Car-valho played a husband and wife baking team who were unable to conceive. Delia Isvoranu played a witch who had cursed them.

The Bakers wanted to sue said witch, but needed to find an attor-ney. They met with the Big Bad Wolf (played by Judge Flier) to discuss bringing an action for Intentional Infliction of Magical Distress. Wolf agreed to take the case, but only if

the Bakers signed a will d i s t r i b u t -ing all of their as-sets to Wolf.

As an estate planning attorney, I can tell you that this is a terrible idea. They should have signed a trust; it would have avoided pro-bate and gotten all of their assets to Mr. Wolf, Esq., quicker. Also, it’s wildly unethical to obtain a share in a client’s estate as part of a retain-er agreement.

California Rule of Professional Conduct 4-400 specifically pre-cludes an attorney from obtaining any testamentary gift from a client. There is an exception where the at-torney and client are related, but the Bakers are not related to Big Bad Wolf.

Another problem here is that the fee is most likely un-

conscionable. Califor-nia Rule of Profes-

sional Conduct 4-200 does not allow attor-neys to obtain an unconscio-nable fee.

What is an unconscionable

fee? Well, in defining unconscionable, 4-200(b)

has an 11-factor test, which sounds super annoying to memo-rize for the bar exam. The Oracles provided all the discussion here, in-cluding the specific law.

Another problem for Big Bad Wolf is that his partner, Elder Wolf (played by John Hourihan), previ-ously had a consultation with the witch. This creates an impermis-sible conflict. California Rule of


Professional Conduct 3-310(e) does not allow attorneys to represent clients where they have obtained confiden-tial information from another party to the matter.

Illustrating all the things not to do in a potential cli-ent meeting would not be complete without a 100 per-cent satisfaction guarantee. However, California Rule of Professional Conduct 1-400(d)(2) specifically precludes false or deceptive statements to the public. No attorney can promise 100 percent satisfaction. Even I only prom-ise 80-85 percent satisfaction (still a B grade)!

Wolf’s approach to being retained counts as unreason-able pursuant to Section 3-300. That section requires full disclosure of all the terms to the retainer agreement and requires notice that the clients could obtain indepen-dent counsel to review the retainer agreement for them. He failed to provide that notice.

In the next scene, Wolf sought out Little Red Riding Hood (played by April Seo). He impersonated her grand-mother in the hope of eating Little Red Riding Hood.

It is a tale as old as time itself (or at least the first cen-tury when the original folktale was written). The baker comes and attacks Wolf, saving Little Red Riding Hood and sending Wolf to the hospital. At the hospital, Wolf is represented by Shark (played by Michael Markowitz).

Wolf wants to blame his attorney for his “eat Little Red Riding Hood” scheme (and who has not had a client say that to you before?), but the attorney says attorney-cli-ent privilege will preclude Wolf from saying anything.

A discussion regarding that privilege then ensued. The problem for Shark is that the client holds the privilege, not the attorney. While they do not have a valid written retainer agreement, that does not matter.

Written agreements are required whenever over $1,000 worth of legal services are to be provided. Howev-er, privilege starts when intention of obtaining legal services begins. So, Wolf holds the privilege as the cli-ent.

Finally, looking for another attor-ney, the Bakers met with Rapunzel (played by Pam Marraccini). While everything Big Bad Wolf did was wrong, she did everything right.

She lawyered the way it was meant to be. The Oracles helped

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show how she was the mirror opposite of Big Bad Wolf’s more “avant-garde” lawyering style.

This finished the 2014-2015 Inns of Court season, which was another great one. We have a summer mixer open to new and potential members on the evening of July 22, 2015.

If you are interested in applying for RGMAIOC mem-bership or attending our summer mixer, please contact Patricia Kelly at [email protected]. s

Matthew B. Talbot, Esq., is an Elder Law attorney in Walnut Creek. His practice specializes in Estate Plan-ning, Trust/Probate Administration, Trust/Probate Liti-gation, Conservatorships, Guardianships, Elder Abuse and Medi-Cal matters. Matthew is on the Executive Board of the Inns of Court. You can reach him at [email protected] or (925) 322-1763.

JULY 201534

Food From the Bar Drive

RESULTS

In May, the Contra Costa County Bar Associa-tion held its 24th annual Food From The Bar fundraiser for the Food Bank of Contra Costa and Solano.

It started with the 20th annual Comedy Night kick-off, where 175 attorneys and guests enjoyed BBQ and belly laughs at Back Forty Texas BBQ in Pleasant Hill. Nineteen generous sponsors donated to support the event.

That was followed by a two-week fundraising blitz by 34 large and small law offices in the coun-ty, whose 700+ employees helped raise more than $51,350 and over 450 pounds of food.

Over the years, the Bar Association has collected more than $1,150,000 and 55 tons of food for the Food Bank. The attorneys say they are already plan-ning next year’s fundraiser and comedy show, as they work toward their second million in dona-tions!

A special thank you to our sponsors; we could not have done this without your support!

Wells Fargo | Archer Norris | McNamara, Ney, Beatty, Slattery, Borges & Ambacher | New-meyer & Dillion, LLP | The Recorder | Steele George Schofield & Ramos, LLP | U.S. Legal Support | Back Forty Texas BBQ | Brown Church & Gee, LLP | Buchman Provine Brothers Smith, LLP | Certified Reporting Services | Contra Cos-ta County Bar Association | Esquire | Frankel Goldware Ferber, LLP | Gagen McCoy McMa-hon Koss Markowitz & Raines | Miller Starr Regalia | Quivx | Scott Valley Bank | Vasquez Benisek & Lindgren, LLP

THANK YOU

to CCCBA’s

Court Tour Docents

Learning about the detention facility, seeing how courthouse security works, finding out that being a lawyer in real life is not like it is on “Law & Order,” getting to participate as a juror, defen-dant or even the judge during a mock trial.

These are just a few of the things that students experience during a court tour—it’s no wonder that they often remark it was their favorite field trip of the year!

CCCBA is lucky to have an outstanding group of court tour docents, many of whom are CCCBA members. These fantastic volunteers educated over 2,000 Contra Costa County students, parents and teachers about our legal system over the last school year. Thank you for all that you do!

• Brenda Adams

• Judge Richard Flier (Ret.)

• Commissioner Don Green (Ret.)

• Laurel Green

• David Hermelin

• Kevin Lally

• Jan Maddock

• Lisa Reep

• Gwen Regalia

• Robin Siefkin

• Sue Stoltz

• Stephenie Teichman

• Robin Thornton

• Alicia Watson

• Jane White

Interested in becoming a

court tour docent?

Contact Theresa Hurley at [email protected] or (925) 370-2548 for more information.


CALENDARUPCOMING EVENTS | OVERVIEW

For up-to-date information on programs, visit www.cccba.org/attorney/calendar and/or

subscribe to our weekly “Events & News” email. To subscribe, text CCCBA to 22828.

July 14 | Barristers and Women’s Sections

So You Want to Be a Partner (One Day)

more details on page 36

July 15 | CCCBA

Ethics in Co-counsel & Contract Attorney Arrangements,

Part 4 of the 2015 Law Practice Management Series


July 21 | CCCBA

Basic Fee Arbitrator Training


July 23 | Criminal Law Section

Technology in the Courtroom


July 30 | Family Law Section

Get to Know Your Family Law Judges


September 10 | CCCBA

Job Search Strategies for Success



Cybersecurity: What You Need to Know,




Practice Area Expo


October 1 | CCCBA

Bar Fund Gala Reception


October 21 | CCCBA

This is not Your Parents’ Law Firm,



November 20 | CCCBA

21st Annual MCLE Spectacular


JULY 201536

July 21 | CCCBA

Basic Fee Arbitrator Training

This valuable training session is offered to all attorney and non-lawyer (lay) volunteers who arbitrate attorney-client fee disputes for any local Mandatory Fee Arbitration Program through the State Bar of California. We also encourage all prospective volunteers to attend. The course will provide the basic training required to serve on a three-arbitrator panel or as a sole arbitrator.

Speakers: Lorraine Walsh, Esq. Malcolm Sher, Esq. Steve Gizzi, Esq.

Time: 5:30 pm – 8:30 pm

Location: JFK University 100 Ellinwood Way, Pleasant Hill

MCLE: 1 hour legal ethics, 1.75 hours general MCLE credit

Cost: $10 for CCCBA members and non-members

Registration: Online atwww.cccba.org/attorney/calendar

July 15 | CCCBA

Ethics In Co-counsel & Contract

Attorney Arrangements, Part 4 of the

2015 Law Practice Management Series

Learn about important ethical issues to be aware of in co-counsel and contract attorney arrangements.

Speakers: Jerome Fishkin, Fishkin & Slatter Professional Liability Attorney Joan Presky, Presky Legal, PC Katy Young, Ad Astra Law Group

Time: 4:30 pm – 6 pm

Location: JFK University 100 Ellinwood Way, Room S304, Pleasant Hill

MCLE: 1.5 hours legal ethics MCLE credit

Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members


More Info: Contact the CCCBA at (925) 370-2540

July 14 | Barristers and Women’s Sections

So You Want to Be a Partner

(One Day)

In this interactive roundtable discussion, several successful partners will explain the many ways in which an associate could show rainmaker potential, implement ethical client service practices and become an invaluable asset to the firm.

Speakers: Crystal Van Der Putten Gina Boer Jordan Rojas Karyne Ghantous Suzette Torres

Time: 5:30 pm – 6:30 pm

Location: JFK University 100 Ellinwood Way, Pleasant Hill

MCLE: 0.5 hours legal ethics MCLE credit

Cost: $20 for section members, $25 for CCCBA members, $30 for non-members



July 23 | Criminal Law Section

Technology in the Courtroom

Every trial lawyer should understand the current trends and best practices as well as the risks and pitfalls that await the unwary trial attorney. Local criminal trial lawyer Joseph Tully promises an entertaining and step-by-step tutorial in understanding and embracing this valuable tool.

Speaker: Joseph Tully

Time: 12 pm – 1:30 pm

Location: Creek Monkey 611 Escobar St., Martinez

MCLE: 1 hour general MCLE credit

Cost: $20 for section members, $30 for CCCBA members, $35 for non-members



July 30 | Family Law Section

Get to Know Your Family Law Judges

Presented by the Family Law Section and the CCCBA.

Help us honor Judge Jill Fannin for her years of service on the Contra Costa County Family Law bench. Please join us for an opportunity to get to know members of our local Family Law bench on a one-to-one basis. Enjoy refreshments and conversation with your Family Law judges.

Time: 5 pm – 9 pm

Location: Contra Costa Country Club 801 Golf Club Rd., Pleasant Hill

RSVP: Please RSVP to [email protected]

More Info: Contact Therese Bruce at (925) 930-6789 or [email protected]


Job Search Strategies for Success

Learn how to put your best foot forward when looking for a legal position! Join us for an informative session where our experienced panel members will cover the following:

• Resume and cover letters; what works and what doesn’t

• Interviewing do’s and don’ts• The importance of networking• The job search process• Trends in legal jobs

Q & A to follow the panel presentation.

Speakers: Audrey Gee, Brown, Church & Gee Jon Lucchese, Robert Half Legal Nandor Krause, Archer Norris

Time: 5 pm – 6:30 pm


RSVP: Online atwww.cccba.org/attorney/calendar




Practice Area Expo

Law students and new attorneys: Join us for an opportunity to learn from experienced at-torneys about what it is like to practice law!

Attendees will have the opportunity to meet practitioners from a variety of practice areas who will speak about what it’s like to work in their field, tips on finding employment, internship opportunities and presentation skills specific to those practice areas.

Practice Area Roundtables include:

• Public Attorneys• Transactional• Employment• Litigation• Probate/Estate Planning• Family• Criminal• Solo/Contract attorneys

Time: 10 am – 12 pm


RSVP: Online atwww.cccba.org/attorney/calendar


Cybersecurity: What You Need to

Know, Part 5 of the 2015 Law

Practice Management Series

This program will discuss cybersecurity and what you should know to protect yourself and your firm.

Speaker: Mike Murray, Veritext



MCLE: 1.5 hours general MCLE credit




DISPLAY ADVERTISING (black & white rates)

Full page $1,650 3/4 page $1,200 1/2 page $ 900 1/4 page $ 600 1/8 page $ 425

CCCBA MEMBER RATES

LISTINGS

Professional listings in the Services, Experts or ADR Directories are $175. With the purchase of a display ad, you receive one free listing. Additional lines are $50 each. Additional categories are $75 each.

Advertise in the Member Directory

For more information, contact Dawnell Blaylock,

Communications Coordinator at (925) 370-2542 or

[email protected].

LAST CHANCE! Reserve your spot by July 10, 2015.

October 21 | CCCBA

This is Not Your Parents’ Law Firm,

Part 6 of the 2015 Law Practice

Management Series

A moderated panel discussion will discuss various models of managing a law firm, including potential alternative models and how they work in practice in comparison to traditional models of managing a law firm. In addition, the panelists will discuss the pros and cons of various alternative and traditional management practices.

Speakers: Harry Stern, Rains Lucia Stern, PC Marie Barnes, Ad Astra Law Group Renee Livingston, Livingston Law Firm



MCLE: 1.5 hours general MCLE credit



JULY 201538

advertisers index

ADR Services . . . . . . . . . . . . . . . . . . . . . . 19

Roger F. Allen . . . . . . . . . . . . . . . . . . . . . 24

David Arietta . . . . . . . . . . . . . . . . . . . . . . .10

Barr & Young Attorneys . . . . . . . . . . . 25

Bingham Osborn & Scarborough, LLC . . . . . . . . . . . . . . . . 39

Bray & Greenwood. . . . . . . . . . . . . . . . . 16

Diablo Valley Reporting Services . .40

Ferber Law . . . . . . . . . . . . . . . . . . . . . . . . . .7

Lenczowski Law Offices . . . . . . . . . . . .31

Morrill Law Firm . . . . . . . . . . . . . . . . . . 15

Mullin Law Firm . . . . . . . . . . . . . . . . . . 29

Perry A. Novak ,UBS Financial Services, Inc. . . . . . . . . . . . . 2

David B. Pastor . . . . . . . . . . . . . . . . . . . . 28

Pedder, Hesseltine, Walker & Toth, LLP. . . . . . . . . . . . . . . . . . . . . . 10, 31

Reliable Receptionist . . . . . . . . . . . . . . . .8

Law Offices of Reed K. Scott . . . . . . . .33

Scott Valley Bank . . . . . . . . . . . . . . . . . . 16

Candice Stoddard . . . . . . . . . . . . . . . . . . .33

Trustcare Fiduciary Services . . . . . . . 18

Lisa M. West . . . . . . . . . . . . . . . . . . . . . . . . .8

Michael J. Young . . . . . . . . . . . . . . . . . . 12

Youngman & Ericsson . . . . . . . . . . 19, 23

Zandonella Reporting Service . . . . . .13

CLASSIFIEDS

LAW OFFICES AVAILABLE

IN WALNUT CREEK

One large window office and one smaller office available in a nine office attorney suite in downtown Walnut Creek. Offices are on the seventh floor in Class A office building. All amenities including receptionist, conference room, secretarial area, and kitchen. Call Elliott at (925) 947-1333 or Larry at (925) 977-3898.

BEAUTIFUL WALNUT CREEK

OFFICE SPACE AVAILABLE

Beautiful offices w/ 7 solos. Networkingposs. Single story converted house w/

pillars, built in’s, FP, molding, kit., conf rm,lg treed rear deck, etc. Corner w/ skylight& built-ins. Perfect for working hard and

relaxing at end of long day! Very congenial.No smoking. Call Paul at (925) 938-8990.

DISPLAY AD PRINT MEMBER RATES:

Full page: $ 550Full page Color: $ 6902/3 page: $ 5001/2 page: $ 4151/2 page Color: $ 5201/3 page: $ 3501/6 page: $ 215Business card: $ 1651/12 page: $ 125

CLASSIFIEDS - PRINT:

Member rates are $15 per line for a one-time insertion and $12.50 per line for three or more insertions.

ONLINE AD RATE:

$165/ month for members. Substantial discounts available for three or more insertions.

CLASSIFIEDS - ONLINE:

$50/ month flat fee. In addition to text, you may add photos or graphics at no additional charge.

Advertise in the Contra Costa Lawyer

Call Dawnell Blaylock at (925) 370-2542 or [email protected].

LITIGATION ATTORNEY

CCCBA solo, 20+ years experience in insurance defense: medical malpractice, elder abuse, personal injury, contracts, escrow. Available for contract/project work. Contact Deborah L. Phillips at 925-895-5207 or [email protected].

WALNUT CREEK SPACE WITH VIEW

Single Office For Sublet; Downtown Walnut Creek; 6th Floor View;

Secretarial Setup; Furnished or not; Class A. Call (925) 938-5880.

PROBATE PARALEGAL

TO ATTORNEYS

Joanne C. McCarthy. 2204 Concord Blvd. Concord, CA 94520. Call (925) 689-9244.

JULY 201540

DIABLOVALLEY

REPORTINGSERVICESCertified Shorthand Reporters

Serving the entire Bay Area

• Deposition Reporting• Experienced Professional Reporters• Computerized Transcription• Deposition Suites Available• Expeditious Delivery• BART Accessible 2121 N. California Blvd.

Suite 290Walnut Creek, CA 94596

[email protected]

Contra Costa Lawyer, July 2015

Documents

Transcript of Contra Costa Lawyer, July 2015