Your day in court. Maybe.

Jury trials are at the very foundation of American democracy.  However, for every 100 cases that are filed in court, statistics say that only about 5 of them will ever make it to a jury trial.  Why is this?  There are a few reasons for the decline in trials, and it affects you as a client of the firm, or if you are making a decision whether to pursue a case in court.

In California, jury trials were much more popular before 1975.  Up until that time, if the Defendant being sued for personal injury can prove that the Plaintiff was also at fault, even 1% at fault, then the Defendant will not be held liable at all, even if he caused the Plaintiff’s injuries.  So why not take a case to trial? All you have to do is prove the Plaintiff is slightly at fault in order to wipe out all of your liability.  Cases went to trial all the time – until a seminal California case was decided in 1975 (Li v. Yellow Cab) which basically changed the proof system, and wiped out the “all or nothing” results.  Now, you compare the fault of all parties involved.  If the Plaintiff is 1% at fault, that is 1% less in money damages that they recover.  And, if the Defendant wants to bring in a third party who is also at fault, they can now apportion away some of their liability onto that third party.  California is only one of 13 states that follow this pure version of comparative fault.  Most of the other states follow a 50% rule, in which a Plaintiff will not recover anything if they are found to have been more than 50% responsible.

Why the change from “all or nothing” to comparing all parties fault? California courts had adopted contributory negligence (the “all or nothing” approach) into the law as part of the general civil code in the nineteenth century.   When the original code was adopted, some scholars say that it was with the knowledge that the common law is “elastic,” and principles would continue to evolve in judicial decisions and was therefore never meant to be permanent. Others say that on a practical level, jurors, are uncomfortable with the outcome of contributory negligence, which was severe, resulting in juries tinkering with their verdicts and assessment of damages in order to arrive at a more fair result.  A series of three landmark California cases discussed all of these factors and ultimately resulted in an overwhelming shift in the late 1970s, completely away from the “all or nothing” approach.  These cases basically adopted a new system that divides liability and damages up much like your thanksgiving pie.  Everyone gets a different sized slice, depending on the success of your arguments.  As a result of this new system, less cases are going to trial because the risk/reward factor has completely changed.  Gone are the days of wiping out your liability if you can convince a jury that the Plaintiff itself was also 1% at fault.

 But this isn’t the only reason cases aren’t going to trial.  Judges are overwhelmed by their docket which has grown exponentially over the years, without adding new Judges (costs too much money, budget issues and all).  The result?  The explosion of forced mediation in virtually every court I have walked into.  You cannot proceed to trial any longer without the court forcing the parties to go through a mandatory mediation first.  This isn’t too bad, unless you have an aggressive judge or commissioner pushing the settlement of your case.  If the case doesn’t settle, sometimes you have to go before the same judge with your trial, which is awkward to say the least and usually prejudicial to the Plaintiff, who refuses to settle.  More often than not, the way Judges and some attorneys convince parties to settle is to instill a fear factor of the jury.  “Who knows what a jury is going to do”…”You never know who you’re going to get on your jury.”  Isn’t that the point of a jury? That it’s a random snapshot of our community?  Why is the jury system being used as a deterrent? All in all, when you look at the statistics, it is clear that this forced court ordered mediation is working.  In the late 1960s, approximately 11% of federal civil filings wound up in a jury trial.  In 2009, that number dipped all the way down to 1.2%.  If the court cannot hire additional judges to reduce the court’s docket, the only other way to solve the problem is to get cases to mediate or worse, resolve them by the abused summary judgment procedure (next month’s article). 

 One of the most important and telling factors contributing to the decline in jury trials is the expense of a trial, coupled with the over-litigation of a case.  Once upon a time, a lawyer may charge $300 an hour to litigate fairly routine matters from when the case is first filed, up through trial.  This kind of billing is no longer economically feasible in today’s economy for the client.  Therefore, less cases go to trial.  It’s just not affordable.  The same amount of cases appear to be filed, however the rate of early resolution before trial has increased, due to the expense of actually going through the rigor of litigation and trial.  Second, we are seeing a lot of defense attorneys, who can charge their corporate or governmental clients a high hourly rate, over-litigate cases.  This is a deadly combination for any plaintiff.  A flurry of discovery, and an over abundance of law and motion procedures are being abused, which drives up the cost to a Plaintiff, trying to prosecute his case.  This is no accident; one of the best means of resolving a case for the defense is to force the Plaintiff to burn through money, to the point that he cries mercy.  The courts are unable to help; after all, the Defendant has a ‘right’ to these procedures and the courts’, even when faced with these abusive tactics, refuse to sanction these attorneys.  These combination of factors are the death knell for any chance of going to trial. 

 Is the declining rate of cases going to trial good or bad? Well, if you’ve been served a summons to appear for jury duty, you may be thinking this is a good thing.  But, if you’re part of the judicial system and you take the purpose of a trial seriously, it is troubling to see cases get steered away from trial.  I can only hope that the good sense that jurors bring to the table is not a deterrent for parties going through with a trial.  If so, the parties should be ashamed of being in court in the first place, if they’re intimidated by the common sense of a jury. 

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Press on our case against Fort Bragg P.D.

City named in three civil suits

Updated: 02/15/2010 03:12:50 PM PST

More details emerged this week about a complaint, filed Jan. 15 against the City, the Police Department and Police Chief. It is one of three suits involving Fort Bragg Police Department, which have little in common.

As reported last week, Donald “Rick” Miele’s suit alleges two counts of defamation and one count of defamation to prevent future employment, a violation of Labor Code 1050.

The 14-page complaint, filed in Los Angeles County Superior Court, names Chief Mark Puthuff in his personal and professional capacity, along with the City and police department.

Miele was employed at FBPD from December 2007 to May 2008, about four months. He had worked for the Oakdale Police Department and Southern California agencies before accepting the position here. According to the complaint, Miele’s fiance’s mother had been diagnosed with cancer, prompting him to give two weeks’ notice so he could move to Los Angeles to support her.

After moving to the L.A. area, Miele applied for a position with the LAPD and a background check began, the complaint reads.

“Much to Miele’s surprise, he was informed by LAPD background investigations that he was disqualified to serve at LAPD, due to negative information received from the Fort Bragg Police Department,” the complaint states. As a result, he was subsequently disqualified from every other law enforcement position to which he applied.

“When Miele inquired as to the reason for his disqualification, he was informed by Hermosa <!– var cb = Math.random(); var d = document; d.write('’); d.write(”); // –>Beach Police Department … that the situation at Fort Bragg’ prevented his hiring,” the complaint states. “The background [check] was admittedly conducted as a result of piggybacking on the LAPD’s background investigator report.”

Miele investigated further, at the request of LAPD officials, and traveled to Fort Bragg to review his files personally. The complaint states that the file contained no citizen complaints, disciplinary actions or internal affairs investigations during Miele’s four-month employment. Also included was a checklist which showed that Miele passed all psychological tests, interviews, background investigations and physical exams.

Miele believes that Puthuff, Sgt. Charles Gilchrist and others not yet known uttered slanderous statements to background investigators, who then repeated those statements to other agencies, not realizing they were defamatory.

“Once Miele determines the identity of the [John] Does who made defamatory statements, said individuals will be added to the complaint,” it states.

A key factor in the case surrounds a statement by an LAPD investigator who said the disqualifying information was that Miele failed to disclose information about two incidents. The investigator said he was told that Miele had been “rude and unprofessional” on two occasions, and that he was counseled, placed on a performance improvement plan and resigned the next day. The complaint states the investigator said the information came during a phone call from Fort Bragg Police Department.

“On information and belief, Miele believes that other defamatory statements were issued out of hostility, spite and back-biting as a result of leaving Fort Bragg Police Department suddenly, with only two-weeks’ notice after unexpectedly having only served four months at FBPD,” the complaint states.

Miele’s attorney, Joy Rosenquist, said in an email that dollar amounts for damage are still being determined.

“We will likely use the Los Angeles Police Department’s pay scale as a starting point for what he would be making, but was prevented from doing so because of the defamation and Labor Code violations,” she said. “That will be our starting point.”

Here’s the link to the entire article written by TONY REED Staff Writer

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More Press on Our Client, Mark Neri, fired Ceres Detective

After my interview with this reporter on our client, Mark Neri, here is the Modesto Bee’s article, verbatim.
– Joy R.

Fired Ceres detective seeks job, back pay
Neri put on DA blacklist as compromised witness

By Garth Stapley

A former detective blacklisted by prosecutors is asking a judge to order Ceres police to give him back his job.

Mark Neri, 46, was fired earlier this year because the Stanislaus County district attorney’s office deemed him not credible as a witness, according to court documents. He was “involved in numerous criminal incidents” and is not fit to testify, District Attorney Birgit Fladager wrote in a letter to Ceres’ police chief.

Neri claims in court papers that “the penalty of termination is excessive” and based on irrelevant incidents, some dating to 1993.

“He got a bum deal,” said his Sacramento-area attorney, Joy Rosenquist. Neri now investigates for a federal agency that his lawyer declined to identify, but would prefer returning to Ceres and wants back pay, Rosenquist said.

At the heart of Neri’s trouble is the district attorney’s “Brady list,” which identifies officers with compromised credibility in the eyes of prosecutors.

It’s named after Brady v. Maryland, which produced a 1963 U.S. Supreme Court ruling requiring that authorities give the accused any evidence that might support a defense. That includes challenging the credibility of law enforcement officers.

“Prosecutors take this obligation very seriously,” Fladager said Friday in an e-mail response to a Bee inquiry. “To not do so would risk the viability of hard-fought convictions and also subject prosecutors to disciplinary action.”

Fladager did not directly respond to a request to reveal her Brady list. She said her office is flagged electronically when a blacklisted officer is entered as a potential witness, allowing prosecutors to notify defense attorneys.

In Neri’s case, prosecutors gave defense attorneys CDs with 500 pages of background documents, including details from his personnel files with Modesto and Turlock police, where he previously worked. When that happens, Rosenquist said, “You’re done. Your reputation is shot.”

Rosenquist said her client’s troubles stem from an old custody dispute arising from the exchange of a child with his ex-wife, plus other “unsustained allegations” dismissed by authorities.

Fladager’s April 2008 letter to Ceres Police Chief Art de Werk refers to allegations that Neri violated a restraining order in Turlock, adding there was “no basis to obtain a conviction.” The letter also cites allegations that Neri “stole property, vandalized a car and illegally obtained criminal offender/driver’s license information” in a case reported to Modesto police.

While probing Neri’s past, Fladager’s investigators found “evidence that Neri has engaged in the falsification of government records and lying to a superior during an investigation,” according to the letter.

“These revelations … lead me to conclude that Det. Mark Neri has been untruthful during an official investigation, has falsified official records and has illegally accessed governmental databases,” reads the letter, which bears Fladager’s name as well as the name and signature of Chief Deputy District Attorney Dave Harris.

After leaving jobs with Modesto and Turlock police for undisclosed reasons, Neri was hired in Ceres in 1995. He later was promoted to sergeant, demoted and suspended eight hours for unspecified “misconduct” in 2004. He was promoted to detective in 2006, according to court documents.

Citizen complaints prompt probe

Prosecutors blacklisted Neri in April 2008 after an investigation prompted by “citizen complaints,” according to Fladager’s letter.

In a claim filed with county leaders, Rosenquist said Neri landed on the Brady list “without legal justification. … The evidence is unclear why the district attorney’s office took such a keen interest in Det. Neri and why they felt compelled to conduct an investigation with an exhaustive review of records going back as far as 1993.”

Ceres officials “tried several times to negotiate with the district attorney’s office to remove Det. Neri’s name from the Brady list,” Rosenquist wrote. Neri received a commendation a year ago for tracking down in Louisiana a 14-year-old boy and returning him “safely to his family” in Ceres.

“If given the chance, he would take (his Ceres job) back in a heartbeat,” Rosenquist said. “He was good at what he did and got fulfillment in putting people away.”

But Ceres officials fired Neri earlier this year because the Brady list prevented him from doing his job, Rosenquist wrote. The county’s Brady list policy violated his civil rights and impugned his reputation, says the claim, which can be a precursor to a lawsuit.

Asked if other blacklisted officers have been terminated, Fladager said, “We don’t concern ourselves or involve ourselves in the employment issues of law enforcement agencies.”

County Counsel John Doering said Neri’s claim against the county was filed beyond a deadline allowed by state law. The Bee was unable to reach Ceres’ outside counsel in San Francisco handling this case; Ceres City Council members listed the litigation on a Nov. 23 closed-session agenda.

Modesto defense attorney Ernie Spokes called Neri to testify in a recent double-homicide trial because Neri had tape-recorded interviews in the case, Spokes said. The prosecutor declined to ask Neri questions, Spokes and Rosenquist said. Jurors in September found Timothy Carrillo guilty of second-degree murder.

Fladager said the Carrillo case judge and attorneys discussed Neri’s Brady list status and the judge discounted it, “given the limited nature of Neri’s testimony.”

Fladager did not respond to questions of how many officers are blacklisted, whether cases have been compromised, how an officer gets on or off a Brady list and whether other blacklisted officers have testified at trial. She said information shared with defense attorneys about Neri is not public record.

“Federal law may require that prosecutors disclose certain information, but state law precludes it,” Fladager said, citing the California Peace Officer’s Bill of Rights. ” ‘Brady’ is one of the most complex issues that prosecutors have to deal with,” she added.

A judge is expected Tuesday to rule on Ceres’ motion to dismiss; if denied, a hearing on Neri’s petition for reinstatement would be held Jan. 29.

Bee staff writer Garth Stapley can be reached at or 578-2390.

Read more:

Read more:

Here is a link to the article

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Discredited Detective Fights Back

Here is a copy and past from an article in the Modesto Bee.  I spoke at length with the managing editor last month, and I appreciate his article on Neri’s cause.  Here is the article, verbatim:

Discredited officer Neri fights back

Jeff Benziger Managing Editor

   Long-time Ceres police detective Mark Neri says the Stanislaus County District Attorney’s Office blacklisted him out of police work and is preparing to fight his dismissal.

A 19-year veteran of the Ceres Police Department, Neri was released from duty on March 9, 2009. According to his attorney, Joy Rosenquist of the Goyette law firm in Sacramento, Neri was unjustly placed on what’s known as the Brady List, a list of officers who are deemed not credible in court by district attorneys. The List comes from a 1963 Supreme Court ruling that requires prosecutors to tell defense attorneys about any police officers who may have credibility issues on the witness stand.

Typically an officer is placed on the list, said Rosenquist, based on acts of moral failure, such as embezzlement or fraud. Being on the list meant that the D.A.’s office would not be calling on Neri to testify in cases in which he made an arrest. Placement on the list essentially caused the Ceres Police Department to release him.

“The city could not keep him,” said Rosenquist. “If a detective cannot testify … then he doesn’t have a career.”

Rosenquist said her client was placed on the list “based on junk. Some of it was really stale like a 1993 divorce records.”

Carol Shipley of the Stanislaus County District Attorney’s Office would not comment on the case nor give information on the criteria for placement on the list.

City Attorney Mike Lyions also would not comment on any aspect of the case since Neri’s personnel files are private and releasing them would “be violating his right to privacy.”

“There are some theories of where it came from,” said Rosenquist. “But we’re not sure why the DA’s office took such a hard line against him. They offered him no probation.”

She said the city of Ceres contested Neri’s placement on the Brady List but the District Attorney’s Office stuck by its decision.

Rosenquit said she’s planning a suit against the Stanislaus County District Attorney’s office, preparing a writ to challenge its policies and procedure.

Rosenquist said her client has “a problem” with the way the D.A.’s office sent out a CD with 500 pages of documents relating to Neri’s case to defense attorneys in the area.

She said she will challenge the county’s Brady List procedure and be shown why Neri was added.

“It’s not going to be ending anytime soon,” said Rosenquist.

Neri appealed his termination and underwent a hearing conducted by a three-person panel formed by Lyions. The panel stood by the city’s dismissal of Neri because of his problems with the D.A.’s office.

The Ceres City Council took no action on the matter in an April 13 closed session.

Neri was hired by the Ceres Police Department on Aug. 21, 1995. He was later promoted sergeant on May 10, 2000 but demoted on Aug. 6, 2004. Officials would not say what triggered the demotion.Neri had been placed on administrative leave as the city negotiated with the D.A.’s office but he was eventually terminated.

Rosenquist called her client “a great employee who led to a lot of missing persons discovery.”

Neri has found a job which he hopes is temporary. He’d like his job back.”He’s holding up but he’s basically got his eggs in this basket.”

 To read  the article at the Modesto Bee:

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Technology finally gets some respect

On June 29th, the Governator signed the new Electronic Discovery Act, which is effective immediately.  Just last year, he vetoed an identical version of the act to focus on the budget crisis, I guess he was too busy to veto the same version of the bill, but now it’s law, so here we go.  The Act is modeled after the 2006 amendments to the FRCP.  The Act is the first significant revision of the civil discovery rules in a few decades and addressed electronically stored information, hot issues right now.  For example, if you send a discovery request to Defendant for all documents pertaining to “x,” the Defendant must search all electronically stored information as well, i.e. they have to check their email systems, backup servers, backup tapes, digital forms of storage, etc.  It applies really to all civil cases, since almost everything is stored electronically, in some form somewhere, whether we overtly think about it or not.  Here are a few bullets of the more notable changes to the rules:

  • A party can now request a sampling or testing of discoverable information, not just an inspection or copying.  This is good news for intellectual property folks, who litigate over formulas, etc.
  • Requests for Electronically stored information (ESI) may be objected to on the grounds that a) it is not stored in a reasonable accessible source.  The objection must identify the source deemed not reasonably accessible (“the server is in Canada somewhere”); b) production would cost a lot or create a big burden; c) Objecting party can refuse to conduct a search absent a cost sharing agreement. This is a big change – previously, you had to pay for it, and seek cost sharing via a motion.
  • Requesting party can specify form in which the ESI must be produced. Of course, you can object to this or provide an alternate form.  If no form identified, responding party must produce in the form that it is kept in standard business practice.  You cannot be required to produce more than one form of the requested ESI.  Of course you have to also use these guidelines when subpoenaing ESI from third parties in the course of your litigation.
  • If you are claiming the ESI is not maintained in a source reasonable accessible, you have the burden of showing specific facts and evidence of the alleged burden and expense.  Once the burden is met, the burden shifts to requesting party to show good cause why the info should still be produced.  The Court can set limits on how the ESI is produced.
  • Mandated cost shifting is now under CCP 1985.8(g), with respect to subpoenas for ESI.
  • Where requested information must be translated to render it accessible or intelligible, the requesting party bears the burden of that cost. (This affects wage disputes where we request large amounts of payroll information, which is not always prepared, stored or provided in a rational or intelligible way)
  • Sanctions for failure to produce ESI are authorized, however, sanctions are prohibited if the failure to produce ESI resulted from the loss of ESI during routine good faith business operations.  (“we deleted it” doesn’t count – even permanently deleted items are recoverable, don’t let that excuse fly.)
  • ESI must be returned at the conclusion of the case because producing a large amount of ESI usually increases the risk that there may be privileged information in such disclosure (or trade secrets, etc.)

Discovery requests may also be limited when it is: 1)unreasonably cumulative/duplicative; 2) info can be found in a more easily accessible or less expensive source; 3) requesting party had ample opportunity to obtain the information but did not do so (serve requests early in the case to avoid this defense!!); 4) burden and expense of production is outweighed by the expected benefits.

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Watch What You Tell Your Wife

Deputy Jane and Deputy John are married and both work for the Riverside Sheriff’s Department (RSD). Things are not going so well at home lately because Deputy John has been extremely irritable. After a 2 hour argument, Deputy John admits to using methamphetamine; better yet, he is also stealing it from various sources, including crime scenes. He promised to stop and they never spoke of it again. Fast forward almost a year and RSD gets a tip about Deputy John’s theft of methamphetamine from suspects and other deputies. RSD set up a sting and caught Deputy John stealing meth from a staged crime scene. In a criminal investigation which took place that same day, he admitted his drug use, and further admitted he told his wife about it. Also the same day, his wife, Deputy Jane was interviewed and told them her husband had used meth.

Four months later, an administrative investigation was launched. Deputy Jane was present along with her union representative. She invoked her right against self incrimination. She was then ordered to speak and given the Lybarger admonishment. At this point, she finally invoked the marital communication privilege. This privilege basically says that a spouse has a privilege during the marital relationship (and afterwards) to refuse to disclose a communication if he or she claims the privilege and the communication was made in confidence to his or her spouse, while they were married. During this interview, Deputy Jane backtracked on the admissions she made four months earlier and was vague about whether she knew or believed that Deputy John was using meth. Regardless, the RSD issued a reduction in pay for 8 hours, for violation of RSD policy mandating that a supervisor must be informed if a Deputy has committed a criminal offense. She appealed the ruling and went to arbitration, again invoking her marital communication privilege, which the arbitrator honored. The arbitrator reversed her discipline. RSD filed a Writ, which was granted and the Court ordered the arbitrator to reconsider in light of the court’s ruling that marital communication privileges do not apply to law enforcement administrative investigations and hearings.

In its ruling, the Court basically said the marital privilege just isn’t important enough to trump a Deputy’s loyalty to law enforcement and RSD rules. The same rule applies for attorney client privilege. For example, the Courts have ruled that where an Officer’s duties are conflicted between keeping something privileged and informing the law enforcement agency, the conflict must be resolved in favor of his duties to law enforcement, as such officials are the “guardians of peace and security in the community” and therefore are subject to a higher degree of responsibility. In summary, the Court ruled that since the constitutional, fundamental privilege against self incrimination does not apply to law enforcement administrative allegations, then neither does the more narrow and purely statutory marital communication privilege.

Moral of the story? If you are married to a fellow law enforcement officer, watch what you share with each other at home about your day. It can and will be used against you.

(Riverside County Sheriff’s Department v. Louis Zigman, Defendant and Astrid Reynold, Real Party in Interest)

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Next time, don’t answer the door.

A new case called Paterson v. City of L.A. (CA2/5  B208682) was just issued yesterday and may affect advice to clients, so I thought I’d provide a quick summary:

Appellants Robert and Scarlett Paterson are Los Angeles Police officers, married to each other.  In December 2004, R. Paterson called in sick.  A supervisor, Lt. Garvin, suspected that he was not sick, but was abusing sick time.  Garvin instructed Sgt. Legaspi to go to the Paterson home to find out.  Legaspi spoke to both officers, and both were then the subject of internal LAPD misconduct complaints alleging that they had made false and misleading statements to Legaspi.  Both were temporarily relieved from duty, but were later exonerated by the Board of Rights.  They were reinstated and received back pay for the time of the suspension.

They sued the City of Los Angeles, Legaspi, and others.   They sued the City for a POBR violation saying their procedural rights were violated.  They also brought tort claims against the City and Legaspi for intentional infliction of emotional distress and negligent supervision, which depended on factual allegations about these same events. Both the husband and wife officers sought the civil penalty of $25,000 for each violation of the Act, citing section 3309.5, subdivision (e), on malicious violations of the Act; punitive damages; damages for emotional distress; and money damages based on the theory that the award of back pay did not make them financially whole.  They also sought declaratory and injunctive relief to prevent the City from allowing its own violations of the Act to have a negative effect on them.

The City and Legaspi moved for summary judgment or summary adjudication.  As to the tort causes of action, the motion was based on the doctrines of workers’ compensation exclusivity and governmental immunity.  The appellate Court found that the City and Legaspi were entitled to summary adjudication on the tort causes of action, which were barred by the doctrine of governmental immunity.  As for the POBR violation, the City contended that the Act only applies where there has been “punitive action,” and that appellants’ exoneration by the Board of Rights nullified any punitive action, so that the Act did not apply.  The appellate court reversed the trial court’s ruling of summary adjudication on the cause of action under the Act holding that The Act applies to an investigation and interrogation “that could lead to punitive  action . . . .”  (§ 3303, italics added.)  The City’s nullification theory has no support in the law. 

The Appellate court also reversed the trial court’s ruling granting the City summary adjudication on its alternate theory, not raised in the trial court.  That theory was that as a matter of law, on the undisputed facts (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316), Legaspi was engaged only in a “sick check,” in the normal course of duty, and asked only “innocent preliminary and casual questions,” so that the Act did not apply.  (§ 3303, subd. (i), City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1514.)  The facts at summary judgment are to the contrary, and indicate that Legaspi was engaged in an investigation of suspected wrongdoing.

This is only a brief summary.  Here is the decision if you want the details…

Posted in Insane Outcomes | 3 Comments