| Summer, 1996
More Changes I have expanded the number of "of counsel" associations in a continuing effort to improve my ability to deliver "full service" for all of my clients’ legal needs. My "of counsel" arrangements now include: Peter Scalisi, Esq., a former Riverside County District Attorney, and Certified Specialist in Criminal Law; J. Michael McCoy, Esq. specializing in family law which includes divorce, custody and marital property; and, finally, Winfield S. Payne, III, Esq. who has a Masters in Taxation. In addition to these fine specialists, I also have access to attorneys specializing in Probate and Wills and Trusts. I will continue to emphasize Personal Injury, Bankruptcy, Small Business transactions, business and commercial litigation. Propositions 200 & 202-Update On March 26, California voters went to the voting booth and rejected both initiatives addressed extensively in my Spring newsletter. I understand that other initiatives, sponsored by numerous organizations and dealing with the tort system will be on the November, 1996 ballot. Stay tuned for further comment and updates. Anniversaries 1. This issue marks the tenth since initiating a "newsletter"
in 1994.
Join Me, Find Me, ‘On the Web’ In addition to email addresses on AT & T's Network(gaspalaw@worldnet.att.net), AmericaOnLine (gaspala@aol.com), I now have a formal Websites and can be reached through several directories: Website: http://home.att.net/~gaspalaw
GTE Yellow Pages:
Legal dot Net:
West's Legal Directory:
Did you know....Legal Demographics? -Total Number of US Lawyers-
In California, with approximately 18 % of the country’s lawyers, there are 4,301 attorneys over the age of 75, with 1,346 of them listed as active on the bar’s membership rolls: California-as of 12/1/95:
The female lawyer population population has grown by leaps and bounds over the past twenty years. Now making up more than about one-third of the profession, the number of females in law school outnumbers males. If current trends continue, within two decades the majority of judges will be female, and the gender breakdown of the profession will be exactly reverse of what it was in 1991. Of course, statistically, this is true for many of the "professions" excepting engineering and related disciplines. Three Strikes. . . Struck?
For instance, upon two serious or violent prior felony convictions, although the third or current felony conviction need not be serious or violent, a sentence enhancement of 25 years to Life is imposed. In its most recent decision, the Supreme Court of California has determined that although the Legislature has the power to remove the statutory power of the judicial branch in furtherance of justice to strike the factual allegations--that, presently, it has chosen not to do so with the current law. Accordingly, in cases involving ‘three strikes law’ sentences, the trial court retains its PC Sec 1385 power to dismiss in the interest of furtherance of justice, enabling defendants additional guarantees of procedural due process hearings and rights. As a result, writs granting additional hearings for many defendants convicted by these statutes may be forthcoming, upon the showing by the moving defendant that he was denied Procedural Due Process and the guarantees of Separation of Power within the sentencing process, however the Legislature at any time may correct the ambiguities of the intent of these sections. Our thanks to Pat Schoonover, a long time Moreno Valley resident, 20 year veteran of law enforcement and 4th year Law Student at California Southern Law School in Riverside, for contributing the above condensed version of his recent legal article, and timely commentary on "Three Strikes". Right of Privacy: Employment Records Effective January 1, 1996, an amendment to the California Code of Civil Procedure has changed the manner in which employers should be responding to subpoenas for employment records. California courts have long recognized an employees right of privacy in the confidential contents of a personnel file or employment records. In the past, employers have generally been burdened with protecting the employee’s privacy rights. With the new law, some of these burdens have been shifted to the party seeking the records. New legal requirements now apply concerning the timing, service and nonotice given in regards to employment record subpoenas. First, the subpoenaing party must specify an actual production date which is at least 15 days from the subpoena’s issuance date. Second, the subpoena, supporting affidavit and a very specific written type of notice must be served on the employee at least 10 days prior to the date set for actual production. That separate written notification must include a variety of warnings in special type print. Third, the special written notice must contain at least four "alerts" informing the employee of the records being sought and by whom, the right of privacy, the right to file written objection, and the right to counsel in the event cancellation or limitation of the subpoena is not agreed to by the subpoenaing party. The net effect for the employer and employee is that any employment records subpoena should be scrutinized for the three sets of timing, service and notice requirements. Lawsuits. . . . Even after ‘they’re’ dead and gone? Most everyone is familiar with the concept of the "wrongful death" lawsuit which is brought on behalf of the surviving family and/or statutorily defined heirs. These are claims for the death of a loved one, generally related by blood, and caused by the conduct of the defendant. The flurry of post O. J. Simpson suits comes to mind. People are less familiar with the concept of claims or potential lawsuits against third parties which existed in favor of a decedent at the time of death. If no litigation is already pending, what happens. . .where do they go? Historically, California has gone full circle, from not recognizing claims as "surviving" the death of a claimant, or party, to the current status, effective in 1992, when the entire scheme was changed. In that year, the Legislature went to a standard that all claims survive. A chapter with multiple articles in the Code of Civil Procedure was developed. CCP Sections 377.10 through 377.62 was set aside and directed to deal with the concept of the death of a claimant, or party, expanding the existing statutes on wrongful death. For instance, even very "personal claims" for conversion (wrongful taking of personal property) and/or fraud can survive the death of the claimant/party in whom it originally reposes (and consequently pass on to others that survive the decedent), but the statutes set forth the framework for the asserting of such claims. They are: A cause of action passes to a decedent's successor in interest,
or may otherwise be pursued by the decedent's personal representative.
CCP Section 377.30. A successor in interest is defined as a beneficiary
of the estate. CCP Sect. 377.11. A beneficiary is defined in
terms of whether the decedent died with or without a will. CCP Sect.
377.10. A claimant must be able to comply with CCP Section 377.32,
which describes an "affidavit" procedure that must be made a part of the
original filing of the lawsuit. The affidavit is a declaration under
oath by the party bringing the lawsuit, and attesting to the truthfulness
of certain facts having to do with identity of the claimants, status of
the estate, and the existence of others who might benefit by the suit.
My further updates will follow. With best regards, Gerald Spala June 30, 1996
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