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AEC9C6DF-E03C-4960-A402-DA0D46586E8CAs a bicyclist, I frequently ride around Alameda on our beautiful trails around the San Francisco Bay.  While riding on these paths, I often encounter pedestrians sharing the trail.  As a matter of safety,  I call out to pedestrians when approaching them from behind to warn that I am approaching.  I also slow up while passing so I can take proper evasive action if the pedestrian starts to move into my path of travel.  However, I often see bikers zoom by these pedestrians without warning.  I consider such conduct reckless.  Now California courts have recognized the bicyclist can be charged with driving a “vehicle” recklessly under California Vehicle Code section 23103.

Vehicle Code section 23103 states “(a) A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. (b) A person who drives a vehicle in an off street parking facility, as defined in subdivision (c) of Section 12500, in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

In the case of Velasquez v Superior Court (2014), 227 Cal.App.4th 1471, Mr. Velasquez had attended a Dodgers baseball game.  Apparently, he had a lot to drink at the game, as his blood alcohol level at the time of his accident was .218, two and a half times above the legal limit.  He left the stadium on his fixed gear bike, which has no conventional brakes. As he drove down a hill, he veered onto the wrong side of the road to avoid a car that pulled in front of him and drove into a pedestrian.  The pedestrian sustained broken facial bones, memory loss, and a loss of consciousness.  Mr. Velasquez was charged with reckless driving.  He tried to avoid the charges by claiming that he was not a “vehicle” within the meaning of the statute and therefore he could not be charged with such a crime.  The appellate court disagreed, holding that a bicyclist can be subject to the same criminal penalties as a motorist when they are operating their bikes in a reckless manner.

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Two judges have come under national scrutiny lately, United States District Judge Gonzalo Curiel, and Santa Clara County Superior Court Judge, Aaron Persky. Judge Curiel is the judge in the Trump University Case. Judge Perksy presided over the Stanford swimmer, Brock Turner’s sexual assault trial and his sentencing. Both judges have come under heavy media attention and criticism.

An independent judiciary is central to our democracy. We cannot have judges whose decisions are based on whether they are popular or not. Accordingly, we must think long and hard before trying to intimidate judges with public opinion. In some instances, such criticisms may well be warranted. In other cases, they may pose unjustifiable threat to an independent judiciary.

In a two part series of posts I would like to examine both of these cases and compare the criticisms and see which category they each fall under.   

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This week it was revealed that Volkswagen failed to report at least one death and three injuries involving it’s vehicles to the U.S. National Highway Traffic Safety Administration. NHTSA maintains a database of vehicle defects that lead to death or injury and automakers are required by law to report all claims. Legal complaints against an auto manufacturer must be filed with the NHTSA within 30 days of the end of the quarter in which the automaker was notified. The company must notify the NHTSA even if there’s been a settlement, or the company disputes the complaint or a ruling has been made in the automaker’s favor. This database was designed to track auto defects and support the product recall efforts which are so important for car owners.

As an Alameda personal injury attorney, I have seen the benefits of the safety reporting requirements and as a result automobile safety improvements first hand. When I was a kid, cars did not have seat belts or head rests let alone airbags and sensors. A rear end accident had catastrophic consequences; broken bones, paralysis and even death. There is still room for improvement however. Seat belts have been required by law since 1968. Research shows that the lap/shoulder seat belts reduce the risk of fatal injury to front seat passengers by 45 percent and the risk of moderate to critical injury by 50 percent. Fortunately putting on a seat belt when getting in a vehicle is almost second nature now.
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arbitration.jpegAn interesting expose in the New York Times about arbitration has sparked a lot of interest. KQED’s radio program Forum, featured one of the authors and provided a lively discussion from the audience. Arbitration clauses are now commonly included in consumer contracts. They are found in credit card contracts and employment contracts. Even medical facilities such as doctor’s offices, hospitals and nursing homes contain arbitration clauses in the provider/patient agreement. The clause is hidden in the fine print that we typically gloss over and agree to. When you read an arbitration clause it appears benign. “The company/provider may elect to resolve any claim by individual arbitration. Claims are decided by a neutral arbitrator.” Sounds fair? I don’t think so. I believe arbitration has negatively impacted consumer’s legal rights.

As an Alameda personal injury attorney, l see these arbitration clauses frequently in nursing home agreements and automobile policies, specifically in the uninsured and underinsured portion of a policy. Gyms and fitness centers often include these clauses in their membership agreement, too. By agreeing to arbitration, one gives up the valuable right to a jury trial. Since insurance companies and large corporations frequently find themselves before the same panels of arbitrators, the deck is all too often stacked against the consumer. People may think that because it’s an arbitration, they will not need a lawyer. Unfortunately, this is not the case as all of the legal technicalities of a lawsuit (except the right to trial by jury) are still followed.
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driverless carCan you imagine giving your car keys to your teenage son or daughter and not have to worry about their safety? Do you have concerns about an elderly parent about whether its still safe for them to drive? Are you worried about the distracted drivers who drive behind you while texting or using their cell phones? In the not too distant future, these worries may be ancient history.

Google, Uber, Ford Motor Company and others are working on manufacturing the automated, driverless car. According to Google, it currently has 48 driverless vehicles. 25 are currently being used on the roads in California every day. Google claims that they are averaging 10,000 miles per week of driverless testing on public streets. In addition to on the street driving, they test 3 million miles per day in their computer simulators.
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Sunday, February 22, 2015, is Oscar night. So I was talking with my wife, Sheila, and we were discussing the upcoming Oscars and our favorite movies this year (Two of my favorites are Whiplash and Birdman). This led to a discussion of my favorite lawyer movies. Here they are:
The Verdict, Class Action, A Civil Action, and My Cousin Vinny. As an Alameda personal injury lawyer for over thirty years, each of these movies touches me in a special way and for different reasons.

The Verdict is the classic medical malpractice case involving attorney Frank Galvin (Paul Newman), a once successful personal injury lawyer, who has obviously fallen on hard times, pitted against the erudite, Ed Concannon (James Mason). A family comes to his office because their daughter has suffered permanent brain damage as a result of the local hospital’s anesthesiologist’s negligence. The movie shows how hospitals and other medical professionals can and do make mistakes, and the efforts that are sometimes made to cover up these mistakes (altering medical records in this case). In the end, Galvin obtains a multi million dollar verdict for his client. Interestingly, in the real world, under California law, the verdict would be limited to $250,000.00 for pain and suffering due to the cap on medical malpractice awards in our State (Civil Code Section 3333.2).
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65 chevy.jpegMy first car was a 1965 Chevy Impala SS. It was blue, with a black interior, bucket seats–the whole nine yards. It was a dream car for a kid just coming out of high school (yes, I did work and earn the money to buy it myself). What it possessed in power and beauty however, it lacked in safety. There were no three point seat belts (who used seat belts in the 60’s anyway); there were no headrests; no front and rear end cushioned bumper protections, no stability controls, no modern day sensors, no back up camera’s. These are all safety features we take for granted today. And the safety has paid off in fewer personal injuries and deaths arising out of automobile accidents.

As an Alameda personal injury lawyer, a large portion of my practice involves injury claims arising out of car accidents. So I am constantly looking at studies and scientific data which may relate to these types of personal injury car accident cases.
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court house.jpegI recently represented a family in a wrongful death lawsuit against the City of South San Francisco and a private parking lot operator, Park SFO. The lawsuit stemmed out of the death of the adult sibling of six brothers and sisters. This wonderful family was devastated by the death of the sibling. The decedent was a sixty-three year old landscaper, who died on premises owned by the City and leased to a private company which operated an airport parking garage. The case involved interesting legal questions about the legal responsibilities of landlords and tenants for the safe conditions of properties they own, lease or control.

The incident occurred at the outdoor parking lot of Park SFO. The site was formerly a shipyard in the 1950’s and 1960’s. The shipyard used floating cement piers to close off the shipyard to create dry docks to do ship repairs. After the shipyard shut down, these piers became permanent fixtures which were owned by the City of South San Francisco, and later leased to Park SFO.
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beer pong.jpegWith four grown children, I’ve experienced the angst that all parents do when their teenage children go to a “party” at a friend’s house. And on the few occasions when I’ve left home for a weekend and left my older kids at home, I have felt that same uneasiness–even more so. The fact is, that despite our best intentions, and our children’s best intentions, drugs and alcohol are a part of the high school and college scene. There was a recent California Supreme Court case which addressed one of the legal issues that comes out of this social problem: Who is legally responsible when a teenager drinks alcohol at a party, and later drives and either injures or kills someone else. The answer may not be as simple as you think.

Here are the facts that were alleged in the case. A teenage girl threw a party at her parent’s vacant rental home. The parents did not know about the party, as is often he case when teenagers host a party. The kids publicized the party by word of mouth, telephone, texting, and other social media. When the guests began arriving, they would enter by a side gate, and pay an admission fee of $3 to $5 dollars to gain admittance to the party. Once inside the party, the guests were free to help themselves to beer, tequila and other drinks.
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bike law.jpegEveryday I see articles in the newspapers about bicyclists being injured in collisions with autos. Recently, Governor Brown signed a bill which should help reduce the number of these accidents.

The new law (AB 1371), known as “Three Feet for Safety”, goes into effect on September 14, 2014. The new California law requires drivers of automobiles to give bicyclists at least a three foot cushion when passing a bike from behind. Previously, the law simply required that motorists pass at a safe distance without specifying what that distance was.
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