NOW YOU CAN RECOVER EMOTIONAL DISTRESS DAMAGES, WHEN SOMEONE INTENTIONALLY INJURES YOUR DOG!

By Jennifer Gardner

In my Los Angeles civil and real estate litigation practice, I often represent clients involved in neighbor and boundary disputes. These are very interesting, and very heated cases. Emotions run high, along with plenty of blame on both sides. In the cases I take, my clients are highly sympathetic and true victims of wrongful conduct on the part of their nasty neighbors.

I live in a very urban part of the city, and even though I am a Los Angeles civil and criminal defense lawyer and I should know better, it is  sometimes impossible avoid conflicts with my own neighbors. One neighbor recently threatened to poison my dog. Another time, a neighbor’s unleashed dog attacked my dog. There are many dog incidents where I live, and I have become a very protective dog lover, especially of my own.

 

Dog versus dog disputes are one thing, but when a human intentionally harms your dog that is another. Now, the Court of Appeal has made good law for dog lovers by ruling that a dog owner can recover emotional distress damages pursuant to a claim for trespass to personal property when a neighbor intentionally harms his dog. In that case, in the midst of a nasty neighbor dispute that went on for quite some time, the defendant neighbor took a baseball bat and beat a 15 pound, 12 inch high mini pinscher who ran onto his property, breaking the dog’s leg and traumatizing his family.

In this case (Plotnick v. Meihaus, G045885, (8/31/2012), the Court of Appeal surveyed the law as it applies to emotional distress damages for trespass to personal property, including the family dog. The Court stated:
“In the early case of Johnson v. McConnell, supra, 80 Cal. 545, the court noted “while it has been said that [dogs] have nearly always been held „to be entitled to less regard and protection than more harmless domestic animals,‟ it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt.” (Id. at p. 549.) Additionally, one can be held liable for punitive damages if he or she willfully or through gross negligence wrongfully injures an animal. (Civ. Code, § 3340.) Intentionally maiming, mutilating, torturing, or wounding an animal also constitutes a crime. (Pen. Code, § 597, subd. (a).)”
In reaching its decision that the Plaintiffs could recover damages for their emotional distress from their repugnant neighbor striking their dog with a bat, the Court of Appeal examined California law that allows emotional distress damages for trespass and negligence, as well as the law of other states:

“Furthermore, cases in other states have recognized a pet owner may recover for mental suffering caused by another’s wrongful acts resulting in the pet‟s injury or death. (Womack v. Von Rardon (2006) 133Wash.App. 254, 263 [135 P.3d 542] [cat set on fire; “malicious injury to a pet can support a claim for, and be considered a factor in measuring a person’s emotional distress damages”]; La Porte v. Associated Independents, Inc. (Fla. 1964) 163 So.2d 267, 269 [garbage collector hurled can at tethered dog, killing it; “the affection of a master for his dog is a very real thing and . . . the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal”]; Brown v. Crocker (La.App. 1962) 139 So.2d 779, 781-782 [affirming recovery of damages “for shock and mental anguish experienced” for “death of . . . mare” and “loss of [stillborn] colt” “as a result of shooting”]; see also Annot., Recovery of Damages for Emotional Distress Due to Treatment of Pets and Animals (2001) 91 A.L.R.5th 545.)”

Civil Litigation Alert: Advance Posting of Jury Fees Now Required in Civil Cases

In my civil litigation practice, almost all of my clients want a jury trial.  However, recent changes in the law due to the budget crises are making it more financially challenging for them to have one.

It used to be that parties could wait until 25 days before the trial date to post their jury fees, and that the fees were refundable if the case settled.  Not any more.  The California legislature has recently passed a law (SB 1021, effective July 9, 2012)  requiring that each party in a civil case who wants a jury trial post fees in the amount of $150 on or before the initial case management conference.    California Code of Civil Procedure Section 631(b) codifies this change.   Gone are the days where a party could simply check the box on a case management conference statement indicating that they want a jury trial, or post them and get them back if the case settled.  The fees are now non-refundable.  Given the huge volume of cases filed in Los Angeles alone, this should result in a huge windfall to our financially strapped court system.

We Defend All Sex Crimes Cases Including Prostitution and Solicitation Charges (Penal Code Section 647(b))

By Jennifer Gardner

 

Being a Los Angeles Criminal Defense lawyer, I am often asked to represent people who are charged with sex crimes, including prostitution and solicitation-related sex crimes.   It seems these days that the requests for sex crimes-related legal defense is on the rise.  Recent local media reports confirm what I myself am seeing in my own practice:  prostitution tends to go up during tough economic times because more people walk the streets looking for ways to make money.   NBC News recently reported that some prostitution rings have been using abandoned homes that are in foreclosed in order to operate.   In the San Fernando Valley, prostitution often rotates between Lankershim and Sepulveda Boulevards.  Many of my cases involve arrests near Venice Beach and also in Hollywood.   Despite the efforts of Los Angeles Police Vice Squad, it is difficult to completely eradicate the “oldest profession” in the world.

Still, that does not stop law enforcement from trying: the number of prostitution-related arrests in the San Fernando Valley jumped 21 percent, from 28 in the first 66 days of 2011 to 34 in the same period this year.  Police are also busting massage parlors and escort services, and even setting up elaborate sting operations for people who use the internet (i.e., Craig’s List) to find customers.

We defend individuals accused of the following prostitution-related crimes:  soliciting an act of prostitution, loitering for the purpose of prostitution, agreeing to engage in an act of prostitution, escorting without a permit, engaging in lewd conduct, pimping and pandering.  If you have been arrested, investigated and/or charged with any of these prostitution-related offenses, we can help and defend you.  Don’t just plead guilty – contact us today for a free consultation, and visit our criminal defense website for more information about all of our criminal defense services:  www.LosAngelesCriminalLawDefense.com.

Mean Judges (I don’t like them)

I appeared in court today on a civil matter.  Downtown.  Supposedly the second largest courthouse in the world, where the judges allegedly outwork the lawyers and lack the resources and time to work through the huge volume of cases on their calendars.  If I faced unending piles of work and unrelenting pressure, I would be stressed out too.  But I would not take out my anger on two lawyers who were doing me a favor by agreeing to remove a case from my courtroom and to go instead to private arbitration.

The insurmountable workload could plausibly explain the foul mood this judge was in this Monday morning.   She was so extremely rude to opposing counsel and to me – mostly to opposing counsel because she was angry at him for not zealously prosecuting his case (I represent the defendant).  She was so unpleasant – even after we informed her that our clients have agreed to arbitrate – she screamed at us, “you’re too late!! You’re going to trial!!!” – as if going to trial is some form of cruel and unusual punishment, which for me at least, it is anything but.

Eventually, we explained the statute (CCP Section 1280, et seq.) our clients had elected to arbitrate under.  As she read our stipulation, she could not find any fault with it, and even after we politely pointed out to her that she was flat-out wrong about the law, she still did not change her nasty, impatient demeanor.  As she grilled us, I looked at the many pictures of her with her children on her desk and bookcase, and I thought to myself that I do not know what I would have done had I grown up with a mother like that. “Go ahead!  File what you need to file!  All I can say is what a waste of money.  Too bad we’re not on the record so that everyone else out there can hear this!,” she screamed at us as we finally left her chambers.

I agree with her, that the plaintiff in our case has spent a lot of money pushing a lawsuit through a courthouse over the last year for almost no damn reason, except to agree to arbitrate on the eve of trial.  But to me, that does not excuse her viciously unprofessional temperament.   To me, taking abuse from stressed out judges is not something I ever imagined or wanted to experience when I went to law school.  Why do they call this the “civil” system when it is anything but?  I may never find all the answers to that question, but at least now I know why all the other lawyers in that courtroom were so nervously sitting, waiting for their cases to be called.

We Defend People Accused of Domestic Violence!

According to California law, domestic violence means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.  California Penal Code 13700(b)

Domestic violence affects people of all races, ages and genders.   While statistics show that most victims are female, men can be and often are victims of domestic violence.

Courts take domestic violence allegations extremely seriously.  The charges can be filed as a felony or misdemeanor against any type of domestic partner, meaning someone with whom you share your home.   This includes relatives, step-parents, children, boyfriends, girlfriends, same-sex partners and spouses.   Throughout the state, District Attorneys and City Attorneys have set up special units in their offices that aggressively focus on the large volume of domestic violence cases that are filed each year.  The reason for this is clear:  deaths attributable to domestic violence-related arguments are on the rise, with females being the usual victims.  Indeed, statistics show the following:

1.  A large percentage of female homicide victims are spouses of the offenders;

2.  A large number of homicides where the victim is 40 years of age or older occur between relatives;

3.  One-quarter of all homicides (and one-half of all cases where a female is the victim) occur in the victim’s home;

4.   The greatest percentage of homicide victims between ages 30 – 39 and 40 and over are killed as a result of argument-related conflicts.

(See Homicide in California 2008, California Department of Justice, Division of California Justice Information Services, Bureau of Criminal Information and Analysis Criminal Justice Statistics Center.)

At Gardner + Associates, we understand that relationships are complex and can be difficult.  People often argue, and arguments often escalate.   Our understanding of human dynamics can only help you if you are charged with a domestic violence crime.    We have experience in representing men and women alike who are charged with this type of crime.   We also help people in obtaining Restraining Orders where they fear that one is necessary in order to help them deal with an explosive and often dangerous domestic situation.

If you are charged with domestic violence, do not speak directly to the police or detectives.   Nothing you can say will help you and can and will only be used against you.   You should immediately contact a Los Angeles domestic violence criminal defense attorney who will immediately assist you and who will aggressively defend you and preserve your rights.    At Gardner + Associates, we are dedicated to aggressively defending the rights of our clients, to exposing exaggerated accusations and to fighting cases that have been over-charged.   We will help you navigate through this difficult, emotionally charged process, and do everything legally possible to obtain a dismissal or acquittal.

Victory (On Felony Child Endangerment Case) is Sweet!

By Jennifer Gardner

There is nothing more professionally fulfilling than winning a case for a client – especially where the stakes are so high, as they were for our client last week.  He was over-charged with felony child endangerment, and the Compton DA essentially failed to realistically assess the circumstances surrounding the case, refused to make a reasonable settlement offer of a plea, and forced our client to go to trial.   That’s what’s known as a “free trial.”  In other words, our client had no choice but to go to trial.  And, given the facts of the case, it was clear that if he wanted to win, he would have to testify.

More than our client’s freedom was at stake in this trial:  the future of an entire family was at stake.   Our client has been in this country for the last 37 of his 38 years, and he is a permanent resident.  These days, whenever any non-US citizen is convicted of any type of crime involving abuse or harm or even risk of harm to a child, they face deportation straight from prison and/or jail.  The same is true if they are convicted of a misdemeanor involving the same allegations (although some immigration attorneys will tell you that at least under that scenario, they have a “fighting chance”).   Our client has raised his 17-year-old daughter here, his whole family is here, and his fiancée is 7 months pregnant with their baby.  If we lost this case, he would be “outta here” in no time, after doing his time.  The emotional ramifications of a potential loss were palpable, and they set heavily on my shoulders during the last few months.

What made this even worse was the fact that our client was the victim of someone else’s mistake of judgment.  He was, as many of our clients are, the unwitting victim of a third party’s misdeed.    He did not actively do or intend to do anything wrong, nor did he fail to act any differently than an ordinary reasonable person under the circumstances.

The trouble began when he parked his car in a parking lot, under the shade of a tree, and left his keys, and his fiancée and her 2-year-old in the car, in order to run inside the store to buy a “bionico.”  What’s a bionico?  A fresh fruity dish with yogurt, raisins, coconut.  It’s delicious.    The problem occurred when his fiancée left the car for a few minutes with her child inside in order to join him in the store to change her order because her cell phone had died.   Even though the couple immediately returned to the car, within minutes – police swarmed the vehicle.  The child was not injured at all, but my client was arrested and charged as if he had masterminded the crime of the century.

Our guy had to tell his side of the story.  We had to place our faith and trust in the judgment of 12 jurors – total strangers who we hoped would plainly see the situation here for what it was, and our client for who he is – a loving, caring father and boyfriend who tried to do something nice when things went very wrong.   Lo and behold, they did.    The jury acquitted him on both counts after deliberating for about half an hour.   Victory is sweet, especially for our client and his family.  I slept very well this weekend, my faith in people restored, at least for the time being.

Why I Do What I do

By Mark McBride

For me, lawyering is not about advancing a political agenda, rather, it is “confined to the practice of law.”  For me, the practice of law is standing next to my client and asking the jury to rely on the concepts written in the United States Constitution 223 years ago.

For me, lawyering is about a term I heard in church a long time ago called “standing in the gap.”  As criminal defense lawyers, every day Jen and I “stand in the gap” between, on the one hand, the system, the judge, the prosecutor, and a jury and, on the other hand, a client who, many times, is not like any of those players, and who is definitely not like us.  I will never stop standing in the gap.  It’s in my spirit.  It’s in my heart. I tell juries that my job is to stand in the gap, and that if they have heard any terrible words, or have seen any horrible pictures, of if they don’t like how my client looks and acts, that they should take all that out on me, and not on my client.  I tell them that they should leave this courthouse after acquitting my client, but hating me so much that they should just be burning with rage.

I enjoy explaining to jurors, many of whom are not upper-middle class lawyers, what these fundamental constitutional concepts mean — the right not to testify, the right to vigorous counsel, the right to due process, the presumption of innocence, the importance of the confrontation clause (which means that alleged victims get crucified by me during cross, and the right to have the government prove every element of every crime beyond a reasonable doubt.

And juries get it — and they like to be involved in a constitutional endeavor.  I bring them into the process — them with me and my client.  All of us poring over those 223 year old principles to see if the government, to whom they give their taxes, despite the fact that many of them, if they have a job at all in this economy, make $40-70 k per year in a very expensive city, while raising families and while working 10 hour days as teachers, plumbers, doormen, cab drivers, fireman, police officers, etc.  I deeply respect these people, and they can feel that when I talk to them.

I come from people like that, and I tell them so.  I think they feel that there is good in the world when a guy in an Italian suit can stand next to a guy who smells from being incarcerated so long, and when that same guy puts his arm around his really smelly client, and when they hear me scream and yell in favor of my client.  They see the wedding ring, and I often, if I can get away with it, tell them about just being a normal guy like them (because I am) with a wife and kids.  I’m not that different than them at all. And we are definitely all the same when my client, me, and the 12 jurors pour over the above-stated constitutional principles.

I learned how to be a trial lawyer by teaching Sunday School for many years. In that setting, there are all sorts of people.  People who are absolutely devout, young girls who asked me questions about having sex before marriage, young men who would confess to class that they feel weird about coming to church because they’ve been getting high all week, and gay people asking me if it was okay for them to be in my class at all.  I welcomed all to that class, and I never, ever, turned away one of them.  In fact, I asked the gay man, or the drug addict, or the girl who just couldn’t stop having lots of pre-marriage sex to keep coming back, and that they could call me on my cell phone anytime if they were scared, or depressed, or down, and if they just wanted to hear a non-judgmental voice.  And you know what?  Some of them did.  I learned to talk to people not like me, and I learned respect for all people, by teaching Sunday School.  It’s really true. If you want to learn how to try a case, I tell young lawyers to teach Sunday school, or Temple classes, or enrichment classes at their mosques, etc.

Politically leaning, I’m in favor of the smallest government possible — one that you could drown in a bathtub.  One that provides a national defense, enforces property laws, and prevents crime.  Other than that, I loathe the government.  And I tell the jury that, too (despite an objection, of course, by prosecutors).

A Public Service Announcement: Never Speak to the Police — EVER!!!!

By Mark McBride

Let me start a bit at the beginning (you’ll often hear me say in court, “Your honor, let’s go back to the beginning so I can provide a bit of context on what I’m about to argue.”).  When I was finishing law school in Utah, I clerked for a phenomenal criminal defense attorney. She was absolutely lethal on cross-examination.  When I met her for the first time, she of course gave me her business card.  Her email address?  For the sake of her personal privacy, I won’t give it out in full here, but it was dontconfess@xxx.

Since I just mentioned law school, let’s do a little law 101. No matter who you are — whether you are rich or poor, Black, White, Asian, Hispanic, left-handed, right-handed, educated or illiterate; whether you have never had a parking ticket in your life, or whether you just murdered 36 people in cold blood on video — you have no obligation to speak with police, whatsoever, if they try to question you.  This is not negotiable.  This principle is enshrined in the Untied States Constitution’s 5th Amendment, which explains that a person’s right against self incrimination shall (not “may,” but “shall”) NOT be violated.

There is NO upside to speaking with the police and government agents — ever. I have never read a police report in my whole life (and I must have read at least 5,000 of them) which said, at the end, “You know, after hearing from this guy or gal, and after hearing his or story, no charges should be filed, and this person is a model citizen.”  I have never seen such a police report because they don’t exist. Police reports always give the impression that a person is an axe murderer, regardless of whether they are parked one minute overtime at a parking meter after seeing their neurosurgeon for a follow-up appointment, after having just had a tumor removed.

The most important principle to keep in mind is a very simple one:  if the police had enough to arrest you, they would have already done so, and would not be asking to speak with you.  Put another way, you are the last link in the chain.  They need YOU to talk.  If the police are speaking with you, it’s because they don’t have enough evidence already!  I cannot tell you how many cases I’ve handled where, before hiring me, the client has sung like a bird to the police.  That can certainly be dealt with (and I’ve certainly beaten cases where the client did talk), but it makes the job of defending someone that much harder.

So do yourself a favor:  if you are ever requested by the police to them, give them this one respectful answer, “You know, I’m not trying to be obnoxious, but I’d rather remain silent, not speak with you, and have you contact my attorneys, Mark McBride and Jennifer Gardner.”  But the police won’t stop there, though — not by a longshot.  You’ll then hear, in a sort of mopey voice, the police officers say, “Well, ok, this was your chance to tell us your side of the story and to make a clean breast and just do the right thing.”

As it happens, this is just about the only time in my life when I ever tell the clients to do the “wrong” thing, which is not to talk, no matter the pressure the police put on you.  If you can do this one thing — simply and respectfully maintain your right to silence, regardless of how counter-intuitive it feels not to speak with the police (we are all taught to respect authority, right) – you will have done yourself a world of good, and you will have then done the RIGHT thing.

Defending Gun Possession Charges for Black Juveniles

Most Los Angeles residents are well aware that the number of men who die as a result of gunshot wounds and gang-related shootings in our  neighborhoods each week are disproportionately young African Americans. Not so surprisingly, in our criminal defense practice we see a disproportionate  number of black juveniles facing gun possession charges. Why is it that these teens, many of whom are not gang members or violent individuals, feel it necessary to carry guns?  Whether it is the result of their neighborhoods, peer pressure, a perceived need for self-protection, a desire to be “cool,” or just their naivety about the seriousness of being caught with a firearm, awareness of the consequences they may face if caught with a gun may help lower the number of black juveniles who are inclined to do so.

The consequences juveniles face for gun possession are often harsh and have long-term, life changing, effects.  Being convicted of a felony will affect their right to attend college and to vote.  Serving jail time disrupts their schooling and personal lives, and usually grooms them to become better criminals, leading to higher rates of recidivism.  For juveniles who have family, friends, and community members willing to help us advocate for lesser sentences, they may be lucky enough to be charged with misdemeanors and sent to camps or alternative programs (such as the Salvation Army) that accept troubled youth and help guide them into a career path.  Our young clients who don’t have the benefit of a strong social support system, will almost always face much harsher sentences.

As criminal defense attorneys representing these youth, we take a holistic approach to working up a defense.  A big piece of this includes taking the time to investigate their background and determine what resources and relationships they have that could assist them in receiving an alternative (and more productive) punishment.  Family, friends, and community members willing to advocate for these youth and provide a stable environment in which they can complete probation, are often a critically important component of the defense: when the Court actually sees that a teen defendant has a strong family and support system that is willing to make sure that the teen completes the alternative sentence, we find almost universally that it is more inclined to agree to a lesser punishment and not send the kid to jail.

We observe amazing transformation among young clients who participate in alternative programs instead of serving jail sentences.  These results make us all the more certain that most juveniles deserve a chance to prove that they can make better decisions when placed in a disciplined, nurturing environment, away from the peers and environment that encouraged their deviant behavior.  Sometimes it takes being charged with a crime for them to see that they need to make big changes in the way they live their lives, and placement in an alternative program (and not in jail) often lights the way.

It’s a Drag to be a Juror

By Jennifer Gardner

I’m serving jury duty today.  Criminal Courts Building, Downtown Los Angeles.  I did not have time to do the on-line orientation over the weekend because I worked continuously on a decision that I had to file with the Civil Service Commission on Monday morning.  So, I showed up late Monday morning (at 9:15 instead of 8:30 am) and was told that I could not start on Monday – I could not even do the training, rather, I had to report the next day at 8am and do the training at the courthouse.   Then, I will have to stay there until between 4 pm and 5 pm to see if I am called to be on an actual jury panel.

I can not do this today.  But I can not do this in October either, which is when they told me that I could come back if I really must need to.  Next Monday, I begin a preliminary hearing in a homicide case, and my client is not waiving time.  In October, that very same case will probably be going to trial.  So, today I can not get on a jury and risk being stuck on a case that might not finish on time for me to be at the preliminary hearing, and I can not agree to show up three months from now either.

I’m sure that I’m not the only one who is gravely inconvenienced by having to be here.

I love to try cases.  I was born to try cases.  But this headache is giving me a whole new appreciation for the mental state of the 12 jurors who often decide our client’s fate.  What the judges all tell us when we tell them that we haven’t settled is that when you go to trial, you are now giving up control of your life to 12 very angry, stressed out, people sitting in the jury box.  Now I really get it.  Suddenly, that whole idea (of trial by jury) no longer seems so romantic now that I have hands-on insight into the mindset of our reluctant citizens who are serving on juries (in most cases) against their will.