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News for, and by, our local legal community, curated and created by the Santa Clara County Bar. The opinions expressed in this blog are the authors' own and do not necessarily represent or reflect the views of the Santa Clara County Bar Association, its members, its employees, or its governing board.


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Technology changes the game with juror misconduct

Posted By Administration, Monday, March 2, 2015

It's an admonishment jurors have received since Perry Mason was a pup: "Do not discuss, research or form an opinion about this case."

These days, that admonition seems as quaint and outdated as the black-and-white reruns in which Mason, the iconic TV barrister, lives on. Technology has changed the game.

The proliferation of smartphones and the ubiquity of wireless Internet access have given jurors -- instantly, effortlessly and in many cases anonymously -- the means to flaunt age-old judicial safeguards put in place to guarantee the constitutional right to a fair trial. Moreover, they have created for jurors a sense of entitlement to rival a judge's robed authority.

"They cannot stop themselves," Contra Costa Chief Public Defender Robin Lipetzky said. "It's so easy for them. Do we have statistics on this kind of misbehavior? No. But there's no doubt in my mind that it's pervasive."

Read the whole story at ChicoER News

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Santa Clara County: Ex-jailer says planting informants was routine

Posted By Administration, Monday, March 2, 2015

A former Santa Clara County Jail official has claimed he routinely helped cops and prosecutors plant jailhouse informants to actively dig up information from suspects for about 10 years ending in the late 1990s, potentially violating a Supreme Court ruling that prevents the government from sending anyone to interrogate defendants without their lawyer being present.

The remarks by retired Lt. Frank Dixon in a sworn declaration he gave in an appellate case, as well as an interview with this newspaper, appear to be a rare admission of what defendants have long insisted is a common civil rights violation by law enforcement.

Under a 1986 Supreme Court ruling, the government may plant jailhouse informants only as "silent listening posts" who cannot deliberately elicit incriminating information from the accused.


Read the whole story at San Jose Mercury News


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Brown continues trailblazing judicial appointments

Posted By Administration, Monday, March 2, 2015

Gov. Jerry Brown, a trailblazer in his judicial appointments, set some new milestones last year.

A report from Brown’s office Friday said 35 of his 76 judicial appointees in 2014, or 46 percent, were racial or ethnic minorities. The figures don’t include his two latest appointees to the state Supreme Court, who were both sworn into office last month: Mariano-Florentino Cuellar, a former Stanford law professor and an immigrant from Mexico, and Leondra Kruger, a former U.S. Justice Department lawyer who is African American. About 38 percent of Brown’s  court appointees in the previous three years were minorities.

More than 40 percent of last year’s new judges are women, also an increase from Brown’s previous record.

Read the whole story at SFGate

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Editorial: On redistricting, justices should let voters' will trump self-serving political bosses

Posted By Administration, Thursday, February 26, 2015

For decades, California's legislative and congressional districts were carved up and redrawn every 10 years by the leaders of the Assembly, the state Senate and whatever other political operatives they allowed into their locked and (in image, at least) smoke-filled room. They had two goals: ensure that the new lines protected or even expanded their party's majority in Sacramento and in the state's congressional delegation; and protect incumbents who supported the leadership by providing them safe districts for reelection. Instead of voters selecting their politicians, the politicians selected their voters. Democracy suffered.

Fed up, voters in 2008 created the nonpartisan California Citizens Redistricting Commission, taking the legislative line-drawing task away from the politicians and giving it to a panel of residents selected by a complicated but nonpartisan process that cuts out the role of party leaders. Two years later, voters added congressional district lines to the commission's purview.

California was following in the footsteps of Arizona, whose voters established a similar process in 2000. But Arizona's system is now being challenged before the U.S. Supreme Court, and if it falls, the portion of California's that governs congressional district lines is likely to fall with it.

Read the whole story at LA Times

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Ellen Pao lawyer: Kleiner Perkins 'not a level playing field'

Posted By Administration, Thursday, February 26, 2015

SAN FRANCISCO — A much-anticipated Silicon Valley gender discrimination trial began Tuesday with both sides going into opening arguments swinging.

The case involves Ellen Pao, a former partner at Silicon Valley's premier venture capital firm Kleiner Perkins Caufield & Byers.

Pao is seeking $16 million in back pay and future wage losses after, she says, she was dismissed from her position in October 2012. Kleiner Perkins says she was advised to leave based on her performance.

Pao became the CEO of Reddit, a popular microblogging site, in November. The trial comes during a time of raised public discourse around Silicon Valley's insular culture, which is overwhelmingly made up of white and Asian men. Women, African Americans and Hispanics are underrepresented.

Read the whole story at USA Today

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Santa Clara County High School Mock Trial Tournament Championship Round Approaches

Posted By Paula Collis, Monday, February 23, 2015

Prospect and St. Francis High Schools face off February 24 at the High School Mock Trial Finals 


San Jose, CA (February 23, 2015) - Santa Clara County continues its venerable high school mock trial tradition with 22 high schools competing in this year’s tournament.  The seven-round, four-week tournament is presided over by sitting superior court judges and is scored by hundreds of area attorneys, culminates in the finals to be held at 6pm on February 24, 2015, at the Historic Old Courthouse at 161 N. 1st Street in Downtown San Jose. The program, which gives students an authentic litigation experience, is sponsored by the Santa Clara County Bar Association, the Santa Clara County Office of Education, and the Santa Clara County Superior Court.  The program runs from September through February.

Each team is made up of 18 students who must be prepared to either defend or prosecute the case depending on the night, and to fulfill the roles of pre trial attorneys, prosecutors, defense attorneys, witnesses and court staff.  This year’s participating schools are BASIS, Cupertino, Downtown College Prep, Gunderson, Homestead, Leigh, Leland, Lincoln, Los Altos, Los Gatos, Lynbrook, Archbishop Mitty, Monta Vista, Mountain View, Pioneer, Prospect, Santa Clara, Santa Teresa, Saratoga, Sobrato, St. Francis, West Valley, Wilcox, and Willow Glen.

Of these schools, Prospect High and St. Francis High advanced to the finals.  This year’s final round will be presided over by the Honorable Julia Alloggiamento, a former Deputy District Attorney.  As in prior years, the final round scoring panel is comprised of top legal luminaries from the community, including: Chris Burdick, CEO and General Counsel of the Santa Clara County Bar Association; Claire Cormier, Assistant U.S. Attorney; Richard Doyle, San Jose City Attorney; James Gibbons-Shapiro, Assistant District Attorney;  Hon. Roberta Hayashi, Judge of the Superior Court, John Mlnarik, SCCBA President, Ory Korb, Santa Clara County Counsel,  and Dianne Sweeney, partner with Pillsbury, Winthrop & Shaw.

The winner of the County tournament will go on to compete at the State tournament in Riverside on March 20-22.  This year’s case is named in honor of long-time attorney coach of Lynbrook High and current SCCBA Law Related Education Committee Chair, Mark Shem.  It also features a student-artist rendition of The Honorable Erica J. Yew on the cover.  Judge Yew presided over the 2014 state finals held in San Jose.

In this year’s case, the defendant, Evan Shem, an aspiring artist, is accused of grand theft in connection with the alleged swap of “Treason”, an original painting by Fletcher Yazoo, with a forgery.  Evan Shem was charged with the crime after Shem’s professor and mentor, Marty McCulloch, discovered the alleged swap the morning after a Fourth of July party in which Shem acted as a docent in McCulloch’s gallery.  After police had concluded it was an inside job, Detective Reese Barron searched Evan Shem’s apartment and found what the prosecution contends is the original Treason.

For its part, the defense contends the painting found in Shem’s apartment is merely one of Shem’s many student replicas. The defense will call art expert, Jaime Sardegna, to call into question which painting is the original.  The defense is also expected to point fingers at Charlie Gibbons, an old friend and roommate of Shem’s with a dubious past.  The defense has sought to exclude a list of art collectors found in Shem’s storage cabinet as an unreasonable search and seizure in violation of the Fourth Amendment.

The Santa Clara County Bar Association's Law Related Education Committee is a key component in the continued planning and execution of the are Mock Trial each year. Additionally, the SCCBA provides administrative support throughout the competition.

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Sophisticated scam against San Diego attorney nets nearly $300,000

Posted By Administration, Monday, February 23, 2015

SAN DIEGO - A local attorney is speaking out after hackers used an elaborate scam to steal nearly $300,000 from his firm's account.

Experts say it is an example of a phishing scam gone into overdrive.

The scam started with Feb. 9 email that appeared to be from the postal service, from an email address ending in, with additional instructions a click away.

"I thought it was legitimate and I clicked on the attachment," said John, an attorney with a local firm, who asked 10News not to identify him for fear of hurting his firm.

Hours after clicking on the attachment, John was back on the computer, attempting to access the firm's account with Pacific Premier Bank.

After entering his ID, he was transferred to a page asking for his PIN instead of the typical password. Soon after, he received a call from a man claiming to be from the bank, noticing he was having trouble logging on.

Read the whole story at ABC 10 News

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State Court Officials to Trim Perks

Posted By Administration, Monday, February 23, 2015

SACRAMENTO — State judicial leaders on Thursday announced that they will eliminate a number of executive perks in response to a recent audit that criticized branch administrators for spending lavishly on salaries, benefits and consultants during years of bleak budget-cutting in the courts.

The move marks the first substantive response by the judiciary to Auditor Elaine Howle's January report, which concluded that the branch's administrative arm, known until recently as the Administrative Office of the Courts, may have wasted tens of millions of dollars that could have gone to trial courts that were shuttering courthouses and slashing public service hours.

Martin Hoshino, administrative director of the Judicial Council, outlined a handful of policy changes at the council's meeting Thursday that he said would address about one-third of the auditor's recommendations. Among the changes:

  • The branch will eliminate 22 vehicles from its 66-car fleet and institute new rules governing the use of the remaining leased and owned vehicles. The audit found that the AOC never justified the existence or size of the fleet and that some executives were driving the cars for personal use as much as 80 percent of the time. The remaining cars in the fleet are driven by real estate and maintenance workers who need them for frequent travel to work sites, Hoshino said.

Read the whole story at The Recorder

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Labor & Employment News: Paid Sick Leave for All California Employees

Posted By Robert E. Nuddleman, Thursday, February 19, 2015

Originally posted on SCCBA Labor & Employment Section Blog 

by Robert E. Nuddleman 
Phillip J. Griego & Associates

On or after July 1, 2015, all employees (including part-time and temporary employees) earn paid time off for:

  1.  The Diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee or an employee’s family member or
  2. Victims of domestic violence, sexual assault, or stalking to obtain restraining, to seek medical attention, to obtain services of a domestic violence shelter, program, or rape crisis center, to obtain psychological counseling, to participate in safety planning or to find temporary or permanent housing.

“Family Member” includes:

  1. A biological child, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis regardless of age or dependency status.
  2. A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
  3. A spouse.
  4. A registered domestic partner.
  5. A grandparent.
  6. A grandchild.
  7. A sibling.

Paid leave is earned according to the following terms and conditions:

  • The employee must work more than 30 days within a year of the commencement of employment or within a year of July 1, 2015, whichever is later.
  • The employee can earn up to 24 hours of paid sick leave in a calendar year.
  • The employee accrues paid sick days at the rate of one hour per every 30 hours worked. If the employee is an exempt employee, he or she accrues sick days based on their normal weekly work schedule or 40 hours per week, whichever is less.
  • An employee can use accrued paid sick days after 90 days of employment.
  • An employer can limit the use of paid sick days to 24 hours or three days in each year of employment.
  • Accrued paid sick days carry over to the following year of employment. However, the employer can impose a maximum cap of 48 hours or 6 days until sick leave is used.
  • An employer is not required to pay an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment. However, if rehired within one year of the date of separation, the employer must reinstate previously accrued and unused paid sick days.
  • The employer can require the employee to use paid sick leave in minimum increments of no more than two hours.
  • The rate of pay is the employee’s hourly wage at the time of the leave. If in the 90 days before taking accrued paid sick leave the employee had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay will be calculated by dividing total wages, not including overtime premium pay, by the total hours worked in the full pay periods of the prior 90 days of employment.
  • The employee must provide reasonable advance notice if the need for paid sick leave is foreseeable. If the need for paid sick leave is unforeseeable, the employee must provide notice of the need for the leave as soon as practicable.
  • The employee must receive payment for sick leave no later than the payday for the next regular payroll period after the sick leave was taken.
  • An employer cannot require the employee to find a replacement to cover the days during which the employee uses paid sick days.
  • An employer need not provide paid sick leave if it has a PTO policy that meets the minimum conditions and grants the same leave for the same purposes as this paid sick leave law.
  • The employee must receive written notice of accrued paid sick leave (or PTO an employer provides in lieu of paid sick leave) on an itemized wage statement or in a separate written notice provided to the employee with his or her wage statement.
  • The state can sue an employer for violations of the new law, seeking reinstatement, back pay, costs, attorneys’ fees, and penalties of up to $4,000 per employee per day.  Aggrieved employees can also sue the employer under the statute and on behalf of other “aggrieved employees” pursuant to the Labor Code Private Attorney General Act (“PAGA”)
  • Penalties include:
    • (1) the dollar amount of paid sick days withheld multiplied by three, or two hundred fifty dollars ($250), whichever amount is greater, not to exceed four thousand dollars ($4,000 and
    • (2) fifty dollars ($50) for each day the violation occurred or continued, not to exceed thousand dollars ($4,000).
  • The Labor Commissioner may file of a civil action to enforce its order and the employer may be ordered to pay to the state fifty dollars ($50) for each day or portion of a day a violation occurs or continues for each aggrieved employee.
  • In an administrative or civil action brought under this article, the Labor Commissioner or court, as the case may be, will award interest on all amounts due and unpaid.

Now is the time to prepare for this new law and to learn these new rights so that employees and employers alike will be informed come July 1st.



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High Technology News: Registering Trademarks with Customs in the United States and China

Posted By Christopher J. Bella, Thursday, February 19, 2015

This blog post has been cross posted from the High Technology Section Blog.  

By Christopher Bella

Edge Law Group, PC


By the end of 2015, the International Chamber of Commerce expects the global value of counterfeit goods to exceed $1.7 trillion (over 2% of the world's total current economic output), with almost 70% of such goods originating from China. In trying to protect against counterfeiting, practitioners often make the mistake of not registering their clients' intellectual property with countries' customs agencies. Merely relying on trademark registrations will not provide full protection.

For United State's registered trademarks, registration with U.S. Customs is completed by submitting an Intellectual Property Rights e-Recordation (IPRR) application online.

In China, of particular importance is registering trademarks with not only with the China Trademark Office (CTMO), but also with Chinese Customs (the General Administration of Customs or GAC for short). Registration with the GAC is not legally required, but provides the benefit of China Customs officials actively searching for infringing products. China Customs officials often only check outgoing shipments against the GAC database, although they have discretion to check the CTMO database. In reality, there is little to no enforcement by China Customs of trademark infringement without registration with the GAC. In addition, all GAC registrations are published in a centralized, open to the public database, which is frequently used by import/export companies to ensure that the products they are trading do not infringe intellectual property rights.

The following documents are required to register a trademark with the GAC:

  1. A copy of the company's certificate of incorporation; 

  2. A copy of the registration the company intends to record with the GAC.

While not explicitly required, it is recommended that the following are included:

  1. Pictures or samples of the company's products and packages bearing the mark or design; and 

  2. Names of all parties who are authorized or licensed to use the company's mark or design (if any).

The official fee for each registration is $120 and it normally takes two to three months for the GAC to complete the recording.

Practitioners will be remiss if they overlook registering their clients' intellectual property with countries' customs agencies when trying to combat counterfeiting. A simple registration can go a long way to protecting a client's interests.


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