Many members are worthy of special recognition each year, but we recognize the work of one distinguished member lawyer, or several attorneys working together on the same case, with the Consumer Attorney of the Year Award. The award is given each year to a member who has overcome unusual obstacles or long odds to provide justice to victims as well as assisting consumers or changing consumer law for the better in the State of California.
 
We also present the Street Fighter of the Year Award to highlight the work done by California’s small practitioners. This award is given to a plaintiff’s lawyer who has litigated a case that creates a more just society, regardless of personal benefit or financial gain. Pro-bono work and landmark cases that may not have produced a substantial financial verdict are given special consideration.
 
Special thanks to Juris Productions for providing the award finalist videos.
 
The finalists for the Consumer Attorney of the Year Award are:
The finalists for the Street Fighter of the Year Award are:


Robert A. Buccola and Steven M. Campora
Dickson/Paana v. PG&E


DIGGING UP DEADLY REPAIR PROBLEMS

An explosion at a suburban Sacramento home the day before Christmas 2008 killed 72-year-old Wilbur Paana and seriously injured his daughter and granddaughter. Two years earlier PG&E had repaired a gas line in front of the home, but after the repairs Paana had complained that he occasionally smelled gas, and four hours before the explosion several neighbors called PG&E to complain about a pervasive gas odor in the neighborhood. Attorneys Steve Campora and Bob Buccola launched an investigation that revealed the PG&E crew that had repaired the leak had mistakenly used a piece of non-standard pipe which did not properly attach. Gas then leaked into the soil and from there migrated into the home, leading to the explosion. As a condition of the settlement, Campora and Buccola and their clients made PG&E agree to dig up and inspect 75 other sites in the Sacramento area where the same non-standard pipe could have been used, making sure no other family would have to suffer such devastation because of the utility’s negligence.

Roger Dreyer and Harvey Levine
Strange v. Entercom Communications


FORCING ACCOUNTABILITY FOR DANGEROUS RADIO CONTESTS

Jennifer Strange, a 28-year-old mother of three, took part in a water-drinking contest put on by a Sacramento radio station in which the contestant who could go the longest without urinating or vomiting would win a video game system. Shortly after she returned home from the contest, she died of acute water intoxication, the result of drinking almost two gallons of water in just over three hours. The station is part of a national chain. Attorneys Roger Dreyer and Harvey Levine showed officials of the radio station did not submit the contest to review by its national legal office, as was required under the policy of the station’s owners, and did not make any attempt to research whether the contest would be dangerous, even though the broadcasters made references on the air to the earlier death of a Northern Californian from water intoxication. Not only did a jury grant the largest non-economic award ever in a Northern California wrongful death case to Strange’s widower and children, the company agreed to change its employee training at its 110 stations nationwide and change its procedures for approving and staging contests.

John M. Feder and Miles B. Cooper
The Buzenus Family v. Red Company

 
PLACING THE PROPER VALUE ON WOMEN
 
Brian and Patricia Buzenus, husband and wife, were on a motorcycle on U.S. 95 near Needles when it was struck by an oncoming car. Brian Buzenus was badly injured, while Patricia was ejected from the bike and killed. The couple owned and operated a construction company near Edmonton, Alberta. The company that owned the car involved in the crash contested the amount Brian Buzenus claimed he lost based on Patricia’s contribution to the business. The defense, in a rather sexist approach, argued Patricia had not been a key contributor to the success of the business and would have retired soon anyway, claiming Canadian women have a “shortened work life.” Attorneys John Feder and Miles Cooper argued the proper measure of economic damages was the amount of financial support Patricia Buzenus would have provided over the rest of her work life. They reached a settlement believed to be the largest reported result anywhere in the nation for a wrongful death case involving a motorcycle crash.

Brian Kabateck and Richard Kellner
NAACP v. Wells Fargo


MAKING BANKS ADHERE TO FAIR LENDING PRACTICES

The NAACP, the nation’s largest civil rights organization, retained attorneys Brian Kabateck and Richard Kellner to file lawsuits against 15 lenders because the banks steered many African-American borrowers to high-cost loans during the subprime lending boom, even though many of those borrowers could have qualified for lower interest rates. Kabateck and Kellner successfully prosecuted the case and got Wells Fargo to agree to change its lending practices. Wells Fargo also allowed the NAACP to have access to its ongoing practices and adopted the NAACP’s Banking Principles on Fairness & Lending, created to guard against racial discrimination in lending. The settlement provides for funding of a groundbreaking national network of "Financial Freedom Centers" that will distribute financial education and related assistance to underserved black communities, and Wells Fargo also agreed to provide access to loan data to ensure compliance with the fair lending principles. Wells Fargo will work with the NAACP to improve fair credit access to black-owned businesses and increase sustainable homeownership. Following the Wells settlement, two other major banks have similarly resolved lawsuits filed by the NAACP and Kabateck Brown Kellner LLP.

Michael A. Kelly
Rogers v. Affiliated Community Medical Centers
 

FIRST-EVER PLAINTIFFS WIN IN RURAL MINNESOTA
 
A pregnant 22-year-old Minnesota woman, Elise Rodgers, was past her due date when her family practice physician elected to induce labor. Rodgers’ cervix was still not fully dilated after nearly 24 hours of chemical management, and fetal monitoring indicated troubling changes in the baby’s baseline heart rate. But her doctor departed, and shortly thereafter the fetal monitor showed progressively worsening decelerations in the heart rate for 30 minutes. The nurse responsible did not call the physician; it took an on-call obstetrician randomly monitoring from home to order an emergency Caesarian section. The child suffered oxygen deprivation during labor and delivery that caused brain damage, resulting in spastic quadriplegic cerebral palsy. Attorney Michael Kelly argued that the nurses and physician prescribed an excessive amount of the labor-inducing drug and failed to recognize that Elise Rodgers was not reacting appropriately to it. A jury made a unanimous award for past and future health care expenses, loss of earning capacity, and past and future non-economic damages, even though the defense arranged for the jurors’ doctors to be in the courtroom during the proceedings. It marked the first-ever plaintiffs verdict in a medical malpractice case in this rural Minnesota county.

David R. Lira, Thomas V. Girardi, Christopher T. Aumais, James W. Vititoe, Michael Killackey and Stephen Rishoff
Kalinyuk v. Bayside Furnishings/Costco
 
SECURING A CHILD SAFETY PRODUCT RECALL AFTER A CHILD’S DEATH
 
A 22-month-old boy and his baby brother were playing in their bedroom while their mother momentarily went to the kitchen to prepare a bottle of milk. The two children were next to a boatshaped bed which included an attached toy chest at the foot of the bed. The toy chest’s lid was inadequately supported by Chinese-made hinges which could not hold the lid’s weight. The older boy lifted the lid to reach inside for toys and the lid lowered down onto his neck and upper body, pinning him between the lid and the chest and suffocating him. The legal team launched a two-pronged attack consisting of efforts to recall the product so other children could be protected, and litigation against the manufacturer and distributor to compensate the family for the loss of their child. Eventually, the legal team, with the U.S. Consumer Product Safety Commission, secured a voluntary recall of the product. The litigation settled for a substantial recovery days before trial. Had the proper hinges been used, the lid would have been supported and the boy would have avoided his fatal injury.

Robert J. Nelson, Nancy G. Krop, Cliff Palefsky and Michael P. Rubin
Hendow & Albertson v. University of Phoenix

EXPOSING FRAUD IN FOR-PROFIT COLLEGES

Two enrollment counselors at the for-profit University of Phoenix filed a whistleblower suit in federal court in 2003, alleging the university knowingly violated federal law prohibiting incentive pay to recruiters based on students’ enrolling or securing financial aid. Congress banned incentive pay because it leads to the enrollment of students with little chance of succeeding who are victimized with huge debts and little or no education. Taxpayers are then stuck with the tab for the defaulted loans, while the university pockets the funds. The university is the largest beneficiary of federal student loan programs, receiving approximately $3 billion a year. From 2002 until a December 2009 pre-trial settlement, the legal team pursued a successful appeal, reviewed more than one million documents, interviewed more than 100 former university employees and took or defended more than 40 depositions, as the defense tried to use its vast resources to overwhelm plaintiffs’ counsel. The case exposed the compensation practices of the for-profit education industry and sent a clear signal that the federal ban on incentive compensation must be observed to protect students from unscrupulous recruitment and to protect taxpayers from subsidizing risky student loans.

Jeremy Pasternak, Joshua Konecky and Todd Schneider
Cardin v. eHarmony.com

PUTTING SAME-SEX COUPLES ON EQUAL FOOTING

The popular online matching service eHarmony.com poured substantial resources into creating a body of quasi-scientific research to justify its longstanding practice of denying gays and lesbians the opportunity to use its patented online relationship matching system. eHarmony had also convinced the California Department of Fair Housing and Employment to rule that its refusal to serve gays and lesbians complied with the California Unruh Civil Rights Act. Nonetheless, the attorneys were not deterred and brought a class action complaint against the company. After the attorneys obtained several key documents and executive admissions that made eHarmony vulnerable at trial, they were able to negotiate a settlement that allows individuals seeking same-sex relationships to access eHarmony’s matching service in a non-stigmatizing and equal manner. Individuals seeking same-sex relationships may now do so through the same eHarmony homepage used by those seeking an opposite-sex match or, if they prefer, by going directly to a web page designed specifically for them. The case shows how the legal system can work to improve circumstances for individuals who have traditionally been discriminated against, not just by government entities but in the private sector as well.

 
 
Michael Cohen and Heather McKeon
Roth v. Zurich American Insurance

WINNING JUSTICE FOR AN ABANDONED CLIENT

Steven Roth, a former agent for New York Life, was sued in a series of seven lawsuits by former clients who had invested in a Ponzi scheme. Zurich defended Roth in three of the cases but refused to defend him in the other four, even though the cases were essentially identical. Roth ultimately prevailed in all seven cases, but he effectively bankrupted himself paying for his defense in the four cases Zurich refused to defend and sued Zurich for the cost of defending himself. Once attorneys Michael Cohen and Heather McKeon got involved, after the case had been litigated for more than three years and Roth had been forced to represent himself, they defeated a defense motion for summary judgment by persuading the judge the policy limit for defense costs did not apply to cases Zurich had refused to defend. They also persuaded the judge to reinstate Roth’s claim for bad faith that had been previously dismissed. The case went to trial and was settled minutes before closing arguments were to begin, after Cohen got the defense’s expert witness to admit during cross-examination that he had used the wrong legal standard.

Anna Dubrovsky and George V. Choulos 
DaSilva v. Omelas and Thompson & Harvey Transportation
 
EXPOSING EMPLOYER NEGLIGENCE
 
Clayton DaSilva was on a motorcycle in San Mateo County, driving into a blind curve going uphill on a two-lane road, when he was struck by the rear wheel of a big rig going in the opposite direction. DaSilva suffered multiple fractures and underwent 17 surgeries, and there is a possibility he will require a hip replacement. Attorneys Anna Dubrovsky and George Choulos claimed the truck driver was going too fast for conditions and was not able to keep his trailer within its lane. Dubrovsky and Choulos were able to show the jury that the trucking company had falsified personnel records of the driver, who had not been properly trained, failed to record his hours of service in his daily logs, and was not properly tested when he was hired. The company also failed to test the driver for drugs and alcohol after the crash. While the jury found comparative fault against DaSilva for 25%, they returned one of the highest awards for general damages in San Mateo County.

Matthew K. Edling
Jones v. Wells Fargo Investments

RESTORING LIFE SAVINGS OF ELDERLY VETERAN
 
After being advised by the bank that he should not put the $1.5 million he received from the sale of property into a savings account, World War II veteran John Jones told his consultants at Wells Fargo Investments he wanted to use a conservative investment approach with his life savings and did not want to jeopardize the principal ... understandable, since he was 85 years old. But those consultants sold him preferred securities backed by bank debt, not suitable for someone at his stage of life, and made no effort to explain the high-risk nature of the investment. This happened just weeks after the collapse of Bear Stearns amid many news reports that large financial institutions were not sound investments. Within a year an enormous portion of Jones’ life savings was gone. At arbitration, a Financial Industry
Regulatory Authority panel found WFI liable for a breach of fiduciary duty and WFI as well as the consultants liable on investment suitability grounds, with Jones receiving an award for damages.

Theo J. Emison III
John and Jane Doe (parents of minor decedent) v. Doe Hospital
 
SHAPING CHANGE TO PREVENT FURTHER TRAGEDIES
 
A 7-year-old girl suffered a debilitating headache at school rendering her unable to stand. Her mother took the girl to a hospital, where the emergency room physician diagnosed an intra-cranial hemorrhage requiring prompt evacuation to a neurosurgical facility for surgical treatment. Though the standard of care required transfer within 60 minutes of diagnosis, the girl was not transferred for nearly five hours as a result of ineffective procedures and preventable human errors. She died on the operating table. Attorney Theo Emison not only uncovered the series of mistakes that allowed this tragedy to happen, he also creatively utilized the law (asserting Dillon and Civil Code Section 3428 claims) to expose the defendant to much greater than the $250,000 maximum for non-economic damages under California’s
Medical Injury Compensation Reform Act (MICRA). Equally important, Emison insisted that, as part of any settlement, the hospital work with plaintiff’s experts to change its procedures to prevent a recurrence of this tragedy. The case was settled confidentially at mediation after the hospital, working together with plaintiff’s experts, developed a new critical-care transport policy which has now been implemented system-wide.

Gregory L. Johnson
Arellano v. Fillmore Convalescent Center

ACCOUNTABILITY FOR ELDER ABUSE
 
The case involved allegations of physical elder abuse of a 71-year-old stroke victim at a Ventura County convalescent hospital. The family of Maria Arellano noticed bruising and repeatedly complained to administrators at the facility, to no avail. Unknown to them, other residents and their families were complaining of the same treatment, also to no avail. Arellano’s son then hid a video camera in the room that captured his mother being violently mistreated by a certified nursing assistant. The case was aggressively defended, and there was no settlement offer by the defense. The defense argued that only four segments of video were shown, taken from four days, when six months of surveillance video was available, but attorney Greg Johnson kept the focus on the abuse that was evident in the video, and the jury agreed the video showed disrespect, indifference and disregard of Arellano. The jury returned verdicts for both compensatory and punitive damages.

 M. Lawrence Lallande, Sr.
Sanchez v. Estate of Dorothy Kavanaugh
 
ENSURING THE PROPER AWARD FOR A FIRE VICTIM

Lydia Sanchez provided live-in care to a 92-year-old lifelong smoker who regularly smoked in bed and refused to quit. At 12:30 a.m. one night an ember from a cigarette started a fire in the elderly woman’s bedroom that killed her; Sanchez was hospitalized, suffering from smoke inhalation and other injuries. The defense argued that Sanchez had provided the elderly woman with cigarettes, allowed her to smoke in bed, knew the woman had burned herself in the past, and failed to perform a final bed check after the victim’s last smoke the night of the fire, in which she would have discovered the burning ember. Defense did not make any offer to settle. But despite the fact that Sanchez, a 65-year-old native of the Philippines, had difficulty remembering the events and struggled to be able to communicate her thoughts, attorney Lawrence Lallande convinced a jury in a venue known for its extremely conservative juries to award her substantial damages.

Lisa Maki and Christina Coleman
Gerritsen v. City of Los Angeles

OVERCOMING RED TAPE FOR A SURVIVING PARTNER

Los Angeles Police Department Officer Spree DeSha was one of 25 people killed in a 2008 commuter train crash in the Chatsworth district of the city. Surviving DeSha was her domestic partner, LAPD Officer Laura Gerritsen. The two had never formally registered as domestic partners with the state, fearing that could lead to discrimination within the police department if it were to become public. However, DeSha had filled out partnership benefit forms to submit to the city, but they were on her desk when she died. Gerritsen was then denied survivorship pension benefits because the city administrative code required paperwork to be filed during the lifetime of the person whose benefits are at issue, a requirement it does not make for other classes of people entitled to survivorship benefits. Attorneys Lisa Maki and Christina Coleman argued Gerritsen had never been informed the paperwork had to be filed prior to the death of a partner, and after a two-day bench trial a judge ruled Gerritsen was entitled to receive DeSha’s pension.

Timothy McMahon
Uhtof v. Thomas

STANDING UP TO CYBERBULLIES
 
A group of teenage boys created a MySpace profile for a fictitious girl in a scheme to lure another teen into a date with her. Over the course of several months they got the victim to believe he was talking to a real girl. The pranksters then convinced the victim to attend a Halloween party, in costume, at the “home” of the “girl.” When he arrived – dressed in green body paint as The Incredible Hulk – the pranksters were waiting with video cameras to record the event, then surrounded the victim in a room and did not allow him to leave so they could record his humiliation. The video was used to create an eight-minute production that was uploaded to YouTube and seen by hundreds of thousands of people, with the narrator saying the video was intended to ruin the victim’s life. By then the victim was in college, but after the release of the video he became depressed, his grades deteriorated and he was forced to drop out. Attorney Tim McMahon negotiated a substantial out-of-court settlement, one of the first of its kind in a cyberbullying case in California.

Dennis A. Schoville and Louis G. Arnell
Buell-Wilson v. Ford Motor Company

BATTLING FORD TO IMPROVE VEHICLE SAFETY

Benetta Buell-Wilson was driving within the speed limit in a 1997 Ford Explorer on Interstate 8 in Southern California when she swerved to avoid a piece of metal on the road. When she corrected, the Explorer tipped and then rolled more than four times, with the roof collapsing, landing upside down. Buell-Wilson was left a permanent paraplegic. Attorneys Dennis Schoville and Louis Arnell argued the Explorer’s design was defective because it had a high center of gravity and a narrow wheelbase, making it susceptible to rolling over, as well as a defectively designed roof structure. Furthermore, they argued Ford engineers had recommended changes but were ignored. Schoville and Arnell had just one associate to assist them in taking on Ford’s extensive high-powered defense team. After a two-and-a-half-month
trial, the jury awarded both compensatory and punitive damages; after appeal it was the highest sustained punitive damage award ever in California. The verdict was returned in June 2004, but the case is only now eligible for an award because of ongoing litigation, which finally came to an end when certiorari was denied at the U.S. Supreme Court late last year.

Jill P. Telfer
Rodriguez v. Department of Justice, State of California
 
FIGHTING BACK FOR A RETALIATION VICTIM
 
James Rodriguez, a special agent for the Bureau of Narcotic Enforcement in the California Department of Justice’s Division of Law Enforcement, was denied promotion on more than eight occasions after complaining of discrimination and assisting others who filed internal complaints of discrimination. Although Rodriguez did not lose his job, he was subjected to actions in the workplace that materially changed his work environment. Attorney Jill Telfer represented Rodriguez in this retaliation case. Prosecution of the case was particularly challenging in view of the number of law enforcement officials who had to be interviewed, deposed and called as witnesses at trial, including district attorneys, sheriffs and police chiefs. The case challenged the collective decision of many law enforcement representatives. The verdict resulted in changes to the California Department of Justice’s Division of Law Enforcement’s promotional policy.

 

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