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Dale Allen and Lori Sebransky Win New Trial in Court of Appeal

Dale Allen and Lori Sebransky appealed a jury verdict against a police officer, who was held liable for excessive force.  The Court of Appeal determined the verdict was compromised, and ordered a new on trial on both liability and damages.

In June 2007, Tracy police officer T. Freitas and his partner went to plaintiff Steven Allgoewer’s house to investigate Allgoewer’s failure to relinquish custody of his daughter, in violation of a child custody order.  During the ensuing investigation and arrest, Allgoewer became highly agitated, told the officers he was not going to calm down (in spite of their de-escalation efforts), made open-ended threats of violence against others, and disobeyed repeated orders to drop a hand rake, which the officers considered a weapon and a threat to their safety.  When Allgoewer, still holding the rake, turned to move away from the officers toward his backyard, which he was expressly told not to do, Officer Freitas knew he must contain the situation; he made a split-second decision to use a leg sweep to disarm Allgoewer and take him into custody, as he was trained to do.  Allgoewer hurt himself in the fall, and sued Freitas (and others) for excessive force.

The trial court ruled the arrest was lawful as a matter of law, and the excessive force claims went to trial in the San Joaquin Superior Court.  The jury confirmed Allgoewer’s resistance and volatility through special interrogatories, but on a 9-3 decision found the force to be unreasonable, and judgment was entered in Allgoewer’s favor.  The jury awarded Allgoewer his past medical bills (including surgical bills), but awarded no damages for pain and suffering, even though evidence of Allgoewer’s pain and suffering was uncontested.  Officer Freitas appealed the judgment on various grounds. First, the jury was crippled by serious instructional error.  They were not told the arrest was lawful, they were not told the standard by which they must judge the reasonableness of the force used (no hindsight), and they were not told all of the reasonableness factors they should consider.  Second, the trial court erroneously refused Officer Freitas the qualified immunity a police officer ordinarily would enjoy. Third, the 9-3 verdict had all the ear markings of a compromise verdict.

The Third District Court of Appeal agreed the jury’s liability and damages findings strongly suggest the verdict was impermissively compromised, noting the evidence of liability was conflicting (and noting no other party was held liable), Officer Freitas was found liable only by a bare minimum of 9 jurors, and the damages were clearly inadequate based on the jury’s finding of liability.  The Court remanded the case for a new trial on all issues.

For further information about this case please contact Dale Allen at or Lori Sebransky at , or by calling 415.697.2000.

Nine Attorneys from AGHW Named to 2017 Super Lawyers and Rising Stars List

Allen, Glaessner, Hazelwood & Werth (AGHW) is proud to announce that nine of its attorneys have have been recognized as 2017 Super Lawyers or Rising Stars by Super Lawyers Magazine.  The Super Lawyer designation recognizes the top 5% of attorneys in the U.S. and the Super Lawyers’ Rising Star designation recognizes the top 2.5% of attorneys in the U.S. under the age of forty, as chosen by their peers and through independent research within their practice areas.

This year:

  • Partner Dale Allen was recognized as a Super Lawyer in Northern California for the fourth year in a row.
  • Managing Partner Peter Glaessner was recognized as a Super Lawyer for Northern California for the thirteenth year in a row.
  • Partner Mark Hazelwood was recognized as a Super Lawyer for Northern California for the fifth year in a row.
  • Partner Steven Werth was recognized as a Super Lawyer for Northern California for the ninth year in a row.
  • Partner Kevin Allen was recognized as a Rising Star for Northern California for the fourth year in a row.
  • Of Counsel Lori Sebransky was recognized as a Super Lawyer for Northern California for the third year in a row.
  • Associate Oleg Albert was recognized as a Rising Star for Northern California for the fourth year in a row.
  • Associate Kimberly Chin was recognized as a Rising Star for Northern California for the second year in a row.
  • Associate Hannibal Odisho was recognized as a Rising Star for Northern California for the third year in a row.

AGHW thanks our peers for recognizing our attorneys’ achievements.

Peter Glaessner and Oleg Albert Obtain Summary Judgment in Race Harassment and Discrimination Case

Peter Glaessner and Oleg Albert obtained summary judgment for St. Vincent de Paul Society of Contra Costa County (“St. Vincent”) recently in Contra Costa County.  St. Vincent, the Executive Director, and several current and former Board members, were sued by an employee alleging that St. Vincent harassed and discriminated against him on the basis of race, and retaliated against him for complaining about harassment and discrimination.

The employee had worked for St. Vincent for over a decade, received pay raises and promotion.  In September 2013, the employee filed a complaint with the California Department of Employment and Housing (DFEH) alleging race discrimination and harassment in violation of the Fair Employment and Housing Act (FEHA), among other things, going back as far as 2010.  The employee received a right-to-sue letter dated March 27, 2014.  A year and three days later, on March 30, 2015, employee filed his lawsuit.

In May 2016, St. Vincent moved for summary judgment on the grounds that the employee filed his lawsuit three days late and did not exhaust his administrative remedies before filing the civil lawsuit.  Specifically, St. Vincent argued that he failed to secure another right-to-sue letter after the one year expiration deadline of employee’s initial right-to-sue letter dated March 27, 2014.  The employee opposed by producing at the summary judgment hearing on September 1, 2016, for the first time, a right-to-sue letter dated March 27, 2015.  The court permitted additional time for discovery and briefing.  Subsequently, defense counsel deposed the DFEH to learn that the agency created the letter dated March 27, 2015 on August 31, 2016, and that plaintiff failed to complete the DFEH submission process and did not receive a new right-to-sue letter prior to filing on March 27, 2015.

After supplemental briefing, and careful review of the DFEH deposition testimony, the court agreed with St. Vincent that the employee filed his lawsuit too late—past the expiration of the initial right to sue letter—and did not complete the process of filing of a second right-to-sue letter or received a new right-to-sue before he filed his lawsuit on March 30, 2015.  Thereafter, the court granted summary judgment of the entire lawsuit.

For further information about this case please contact Peter Glaessner at , or Oleg Albert at , or by calling (415) 697-2000.

AGHW Brings Holiday Cheer to Local Family

This year, the firm participated in Catholic Charities of the East Bay’s Adopt-a-Family for the Holidays Program, adopting a local family with three children. The spirit of the giving was felt throughout the firm as employees carefully selected, bought, and wrapped gifts for all family members, including bicycles, books, toys, clothing, and gift cards. AGHW is grateful for the opportunity to celebrate the holiday season through giving back to our local community.

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(From left to right) Associates Kimberly Chin and Christina Forst “test drive” the bicycles after assembly.

Nine Attorneys from AGHW Named to 2016 Super Lawyers and Rising Stars List

Allen, Glaessner, Hazelwood & Werth (AGHW) is proud to announce that nine of its attorneys have have been recognized as 2016 Super Lawyers or Rising Stars by Super Lawyers Magazine.  The Super Lawyer designation recognizes the top 5% of attorneys in the U.S. and the Super Lawyers’ Rising Star designation recognizes the top 2.5% of attorneys in the U.S. under the age of forty, as chosen by their peers and through independent research within their practice areas.

This year:

  • Partner Dale Allen was recognized as a Super Lawyer in Northern California for the third year in a row.
  • Managing Partner Peter Glaessner was recognized as a Super Lawyer for Northern California for the twelfth year in a row.
  • Partner Mark Hazelwood was recognized as a Super Lawyer for Northern California for the fourth year in a row.
  • Partner Steven Werth was recognized as a Super Lawyer for Northern California for the eighth year in a row.
  • Of Counsel Lori Sebransky was recognized as a Super Lawyer for Northern California.
  • Associate Kevin Allen was recognized as a Rising Star for Northern California for the third year in a row.
  • Associate Oleg Albert was recognized as a Rising Star for Northern California for the third year in a row.
  • Associate Kimberly Chin was recognized as a Rising Star for Northern California.
  • Associate Hannibal Odisho was recognized as a Rising Star for Northern California for the second year in a row.

AGHW thanks our peers for recognizing our attorneys’ achievements.

AGHW Attorneys Speak on Recreational Activities Claims and Defenses

On May 6, 2016, Associate Kimberly Chin spoke at the Bay Area Chapter of the Public Agency Risk Managers Association (“PARMA”) with a presentation entitled Hazardous Recreational Activities: Taking the Risk Out of Recreation. Ms. Chin informed municipalities, school districts, and park and recreation districts of the various claims that can arise in the context of recreational activities, including dangerous condition of public property and public employee negligence, as well as available statutory immunities and defenses and risk management strategies.

On May 20, 2016, Partner Mark Hazelwood spoke at the annual conference of the California Association of Recreation and Park District (“CARPD”) with a presentation entitled Liability Update for Recreation and Park Districts. Speaking to representatives from various recreation and park districts, Mr. Hazelwood presented on the various claims that such districts can face, such as dangerous condition of public property, public employee negligence, and sexual molestation. Mr. Hazelwood also reviewed various immunities and defenses available to park and recreation districts and discussed specific risk management strategies for various types of recreational activities, such as skateboard and BMX parks, aquatic activities, and golf courses.

Managing Partner Peter Glaessner Participates in Workplace Investigation Webinar

On March 29, Managing Partner Peter Glaessner participated in a 90 minute webinar on “Conducting Workplace Investigations” hosted by Nonprofits Insurance Alliance of California (NIAC) for its members. He was joined by NIAC’s Employment Risk Manager, Siobhan Kelley, also an attorney, who advises NIAC’s members on employment-related issues.  Peter has conducted many workplace investigations concerning various types of employment claims, as well as business issues such as allegations of misuse of client information or technology. He is a member of the Association of Workplace Investigators.

Partner Dale Allen and Senior Associate Kevin Allen Obtain Defense Verdict in Officer-Involved Shooting Case

Partner Dale Allen and Senior Associate Kevin Allen obtained a defense verdict from a federal civil rights jury in a case involving an officer shooting of a suicidal Marine Corp. veteran. Click on the following links for further information on this case:

http://www.fresnobee.com/news/local/crime/article62502827.html 

http://abc30.com/news/federal-jury-finds-sanger-cops-didnt-use-excessive-force-after-fatal-officer-involved-shooting/1219725/

Partner Steven D. Werth Obtains Summary Judgment in Disability Discrimination Case

Partner Steve Werth obtained summary judgment for Webcor Construction, L.P. (“Webcor”) recently in Alameda County. Webcor was sued by a former concrete journeyman for denial of FMLA leave, disability discrimination and wrongful termination. The employee was injured when struck by a piece of wood. Webcor promptly obtained medical treatment for the employee the day he was injured. The treating doctor released him to return to work on modified duty for a week, and then a week later, released him to full duty, without restrictions. The journeyman continued to work for three months, before he was laid off.

Following oral argument, the Court granted Webcor’s summary judgment motion two weeks before the beginning of trial. Specifically, the Court found that Webcor did not know, and had no notice of any serious health condition that would trigger FMLA leave, and that the employee’s alleged ongoing complaints of headaches did not constitute a disability, but that even if it did, that Webcor reasonably accommodated him in any event. Finally, the Court ruled there was no wrongful termination because Webcor laid off the plaintiff for non-pretextual, legitimate business reasons, unrelated to the previous work-related injury.

For further information about this case, please contact Steve Werth at or at 415-697-2000.

Partner Steven D. Werth Elected to American Board of Trial Advocates

Allen, Glaessner, Hazelwood & Werth LLC (AGHW) is pleased to announce that partner Steven D. Werth has been elected to the prestigious American Board of Trial Advocates (ABOTA), a nationwide organization of trial lawyers devoted to the rule of law and the preservation of the civil and criminal justice systems. ABOTA membership is by invitation only and is based, in part, on a lawyer’s personal character and honorable reputation, as well as jury trial experience.

“We are very proud that Steve has been selected for ABOTA membership,” says Peter Glaessner, Managing Partner of AGHW. “He is an exceptional trial attorney whose demonstrated commitment to the legal profession make him the ideal candidate for membership.”

Mr. Werth focuses his practice on employment and labor law, and sexual abuse/molestation claims. He has successfully tried employment and sexual abuse cases in both state and federal court, has represented employers in union grievances and arbitration, and in administrative actions before the California Department of Fair Employment and Housing, the United States Equal Employment Opportunity Commission, the Department of Labor, and the Department of Industrial Relations.

Mr. Werth joins AGHW partner Dale Allen as ABOTA members.

Defense Verdict in Case Involving Police Shooting Caught on Body Camera

Partner Dale L. Allen, Jr. and Associate Philip J. Downs, Jr. successfully obtained a defense verdict after a seven day jury trial in the case of Xiong v. Chavez, et al., U.S. District Court – Eastern District of California, Case No. 1:13-cv-00083-SKO. The trial was presided over by Magistrate Judge Sheila Oberto. Plaintiff was represented by Steve Berki and Jeff Kallis.

The facts of the case are as follows: late on a December night in 2011, Merced Police officers responded to a call of a man brandishing a gun at a party. Upon arriving at the scene, the officers approached the subject address under concealment and took a position of observation while waiting for back-up units to arrive. During this time, the officers heard the “racking” sound of a semi-automatic weapon being loaded from the vicinity of the subject house, as well as verbal challenges by an unknown number of male subjects gathered in the backyard of the property. Seconds later, the officers observed plaintiff emerge from the side gate, heading down a pathway directly toward them. Plaintiff’s right hand was concealed in the fold of his jacket, leaving only his left hand visible. The officers confronted plaintiff by illuminating him with flashlights mounted to their service weapons and yelled to put his hands up.   At trial, they testified they did not have time to say “police.”

Upon being illuminated, the officer’s testified plaintiff turned back toward them as he was pulling a gun and pointed the gun in their direction. The officers fired as he turned and continued to fire as plaintiff ran back toward the gate until he fell when plaintiff was struck in the back of the calf. A gun was found next to plaintiff when the officers approached to secure him.

A video recording of the incident was obtained from one of the officers who had recorded the incident via an eye-glasses camera which the officer had purchased on his own. Plaintiff was treated and recovered from his injury. He subsequently brought a number of Constitutional and state law causes of action against the Merced Police Department and individual City of Merced officers.

At trial, Plaintiff argued that he never pulled the gun from his waist. Therefore, the officers were never in immediate danger when they fired their weapons. Plaintiff contended he was simply running away. Plaintiff further argued that the video proved he was “unarmed” by the fact the video could not definitively show a gun in plaintiff’s hand as claimed by the officers. The recording itself was of poor quality, hampered further by the low light conditions. It appeared to show Plaintiff unarmed and fleeing. Through the testimony of Mike Schott, a video forensic expert, the jury was shown that the video evidence was at best inconclusive and not representative of what the officers perceived in the ambient light at the time of the incident. The case came down to the officers’ training and experience, and their testimony articulating the totality of the circumstances they faced. The jury agreed the video did not capture what the officers’ saw and had to consider before firing.

Prior to trial in this matter, Associates Kevin P. Allen and Philip J. Downs, Jr. obtained summary judgment, dismissing the Merced Police Department and the City of Merced. Kevin and Phil also obtained summary adjudication against a bystander plaintiff. The court ruled that the bystander did not have a cognizable Fourth Amendment claim because he was not the deliberate object of the Defendant Officers’ use of force. That bystander’s remaining 14th Amendment claim and negligence claim brought by the John Burris Law Firm, settled for $45,000 a week before trial after a demand of $450,000. The trial proceeded against remaining individual City of Merced officers. The jury returned the unanimous verdict in favor of the officers in less than an hour.

Comment

The use of body cameras will be a focal point of future litigation. While body cameras will be beneficial they may not provide the “whole story”. Video is limited to two dimensions. The trial showed how lighting constraints and where the camera is pointed at the time of the incident, can affect the “narrative” of the video. Use of a qualified expert may be critical in analyzing such videos.

In this case, the jury understood that the video was of limited benefit. The parties’ testimony remained the most critical element. Ultimately, it remained the credibility of the parties that decided the case.

Associate Kimberly Chin Obtains Summary Judgment in Dangerous Condition of Public Property Case

Associate Kimberly Chin obtained summary judgment in favor of a City of Manteca police officer, who was sued by a Modesto police officer (“Plaintiff”) who was injured in a motor vehicle accident while participating in Pursuit Intervention Technique (“PIT”) training. The Plaintiff alleged causes of action under Government Code section 835 (dangerous condition of public property) and Government Code 840.2 (dangerous condition of public property against a public employee). Specifically, Plaintiff alleged that the City of Manteca police officer had entered into a joint venture agreement with police officers from the City of Ceres and City of Modesto to maintain vehicles used in the PIT training and that a malfunction in those vehicles had caused the accident, resulting in injuries to Plaintiff. As such, the Plaintiff claimed that the City of Manteca police officer was vicariously liable for Plaintiff’s accident under a joint venture theory.

In the moving papers, Kimberly argued that the Plaintiff could not bring a cause of action for vicarious liability arising out of a joint venture agreement against a public employee because such a cause of action was not available under the Government Code. Kimberly further argued that even if such a cause of action were available, there was no evidence that the City of Manteca police officer had entered into any such joint venture agreement. Finally, Kimberly argued that Plaintiff had failed to establish the essential elements of a cause of action under Government Code 840.2 (dangerous condition of public property against a public employee) against the City of Manteca police officer.

After oral argument, the Court granted the City of Manteca police officer’s motion for summary judgment. In particular, the Court found that the City of Manteca police officer had met his burden of showing that Plaintiff could not establish the creation of a “joint venture” and that Plaintiff’s opposing evidence failed to demonstrate such creation.

Previously in this case, Kimberly had successfully obtained dismissal of the City of Manteca on demurrer because Plaintiff failed to demonstrate compliance or excuse from the California tort claim requirements.

Managing Partner Peter Glaessner Appointed to Civil & Small Claims Advisory Committee of the Judicial Council

Peter Glaessner had been appointed by Chief Justice Tani Cantil-Sakauye to serve another term on the Civil and Small Claims Advisory Committee of the Judicial Council. He has already served two previous terms by appointment. The advisory committee consists of approximately 25 experienced appellate justices, trial court judges, civil trial lawyers, and court administrators. The committee proposes and reviews possible changes to statutes, rules and forms affecting civil cases, both in pretrial discovery and motions as well as during trial. His contributions have been focused on civil discovery and legislation.

AGHW 2015 Holiday Seminar

AGHW Adds New Labor & Employment Attorney Oleg Albert

Oleg Albert recently joined Allen, Glaessner, Hazelwood & Werth’s Labor and Employment practice group as its new associate.  Oleg comes from a respected San Francisco Bay Area law firm and his practice includes representation of employers in a variety of areas, including wage and hour, discrimination, harassment, retaliation, disability accommodation, independent contractor status and trade secrets.  In litigation, he has represented employers in federal and state courts against both single and multi-plaintiff lawsuits, class actions and PAGA representative actions.  He has also defended employers before various agencies, including the EEOC, the DFEH, and the Division of Labor Stands Enforcement.  Additionally, Oleg has prepared employee handbooks and policies, offers of employment, separation agreements, and arbitration agreements.

AGHW Presents at 22nd Annual Claims Conference of Northern California

On August 12, 2015, Associates Kimberly Chin, Gemma Mondala, Hannibal Odisho, and Phil Downs presented “Settlement: From First Phone Call to Final Handshake” at the 22nd Annual Claims Conference of Northern California (CCNC) in Sacramento, California.  CCNC is an annual conference that provides continuing education for property and casualty insurance claims professionals. This year’s presentation covered various aspects of the litigation settlement process, including the Fair Claims Settlement Practices Regulations, different methods of negotiating a settlement, maintaining the confidentiality of a settlement, factors constituting a good faith settlement, and the enforcement of a settlement agreement.

For further information about this year’s presentation, please contact Kimberly Chin at kchin@aghwlaw.com or at 415-697-3455.

Partner Dale Allen Appointed as Federal Early Neutral Evaluator and Member of the Board of Directors of the Olympic Club of San Francisco

Partner Dale Allen has been appointed by the U.S. District Court for the Northern District of California to its prestigious Alternative Dispute Resolution Program as an Early Neutral Evaluator with a focus on resolving cases in the area of police practice litigation. Neutrals are selected by the United States District Court judges to assist parties in evaluating early resolution of cases as efficiently as possible. The principal goal of the program is to reduce cost and delay by having neutrals assist parties with focusing on the pertinent matters in dispute, understanding relevant law and legal issues, and identifying evidence and inferences likely to be drawn from the evidence.

Dale was also recently appointed to the Board of Directors of The Olympic Club of San Francisco. The Olympic Club was founded on May 6, 1860 and enjoys the distinction of being America’s oldest athletic club. Long a west coast powerhouse in amateur sports, The Olympic Club is the home of many local, regional, national and international champions. The Olympic Club is also the site of the famous Lakeside Course, which has hosted five United States Open Championships. The Olympic Club boasts a membership of nearly 10,000 members. Dale will serve a three year term.

Associate Kevin Allen Certified as Force Science® Analyst

This past winter associate Kevin Allen attended the Force Science® seminar. The 40-hour course, given by the Force Science Institute, concerns the human dynamic of officer-involved shootings. Course topics included vision, human factors, excited delirium, and cognitive interviewing. These scientific principles shed light on why use-of-force can occur, and how to increase the likelihood of obtaining information post-incident. The scientific principles can be applied to use-of-force investigations and to defense of police officers in civil lawsuits. Having successfully completed the March 2015 course, Mr. Allen is a certified Force Science® Analyst.

6 Attorneys from AGHW Named to 2015 Super Lawyers and Rising Stars List

Allen, Glaessner, Hazelwood & Werth (AGHW) is pleased to announce that all of AGHW’s Partners and two of its Associate Attorneys have been acknowledged as 2015 Super Lawyers or Rising Stars by Super Lawyers Magazine.  The Super Lawyer designation recognizes the top 5% of attorneys in the U.S. and the Super Lawyers’ Rising Star designation recognizes the top 2.5% of attorneys in the U.S. under the age of forty, as chosen by their peers and through independent research within their practice areas.

In 2015:

  • Partner Dale Allen was recognized as a Super Lawyer in Northern California for the second year in a row.
  • Managing Partner Peter Glaessner was recognized as a Super Lawyer for Northern California for the eleventh year in a row.
  • Partner Mark Hazelwood was recognized as a Super Lawyer for Northern California for the third year in a row.
  • Partner Steven Werth was recognized as a Super Lawyer for Northern California for the seventh year in a row.
  • Senior Associate Kevin Allen was recognized as a Rising Star for Northern California for the second year in a row.
  • Associate Hannibal Odisho was recognized as a Rising Star for Northern California.

AGHW thanks our peers for taking notice of our attorneys’ achievements.

AGHW Adds New Public Entity Attorney Phil Downs

Allen, Glaessner, Hazelwood & Werth LLP is pleased to announce the arrival of new associate, Phil Downs, as a member of the firm’s expanding Public Entity practice group, where Phil will specialize in police litigation. Phil comes to the firm following a distinguished and decorated career in the United States Marine Corps., where he ranked as a Captain. Phil’s legal background includes assisting in the prosecution of major felony crimes as a post-bar fellow for the San Francisco District Attorney’s Office. Phil received his Bachelor of Arts Degree in History from the University of California, Davis and his Juris Doctor from the University of San Francisco School of Law. He is a member of the California State Bar.

We welcome Phil to AGHW and believe his contribution will allow AGHW to continue to provide clients with excellent results and exceptional service.

Associate Kimberly Chin Installed as Director-at-Large on Board of Asian American Bar Association of the Greater Bay Area

On March 12, 2015, Associate Kimberly Chin was installed as a Director-at-Large on the Board of the Asian American Bar Association of the Greater Bay Area (“AABA”) at the organization’s 38th Annual Installation Dinner held at the Hyatt Regency Embarcadero in San Francisco.

Kimberly has been a member of AABA since 2010. Prior to her election, Kimberly served as co-chair of AABA’s Women’s Committee from 2013 to 2015 and was an active member of AABA’s Civil Rights and Community Services Committees.

With approximately 700 members, AABA is one of the largest Asian American bar associations in the nation and one of the largest minority bar associations in the State of California. Kimberly will serve a three year term.

Trial Victory in Property Tax Dispute

Representing Nonprofits Insurance Alliance of California (NIAC), Peter Glaessner and Lori Sebransky of the firm scored a trial victory over the Board of Equalization (BOE) in a dispute over the BOE’s revocation of NIAC’s property tax exemption. Following a four-day bench trial, Superior Court Judge Samuel Stevens (Ret.) ruled that NIAC proved it was entitled to tax-exempt status under the welfare exemption of the Revenue and Taxation Code. In addition to the testimony of NIAC’s founder, Pamela Davis, NIAC’s members and insurance professionals familiar with the marketplace for nonprofits also testified at trial. The judge ruled that NIAC, a 501(c)(3) founded 25 years ago, which now insures over 8,500 California nonprofits, provided a public benefit not just to its members, but to the community at large.

Defense Verdict in Dangerous Condition of Public Property Lawsuit

On February 25, 2015, Partner Mark Hazelwood and associate Kimberly Chin obtained a defense verdict in Henry Lopez v. City of Fremont, et al., a consolidated action against the City of Fremont (“City”) and the Alameda County Water District (“District”). After Kimberly was successful in obtaining dismissals by summary adjudication of the causes of action for breach of mandatory duty under Government Code section 815.6 and public employee negligence under Government Code section 815.2, the case proceeded to trial on a claim of dangerous condition of public property under Government Code section 835.

Mr. Lopez claimed that a dangerous condition of public property existed due to the alleged failure of the District and the City’s traffic control set up to provide warning signs or barriers around a construction trench, which was located in the eastbound traffic lanes of Mowry Avenue in Fremont, California. Mr. Lopez, who had been riding his bicycle against the direction of traffic in the eastbound lanes, failed to see the trench and fell into it.

At trial, Mark and Kimberly showed that Mr. Lopez violated the California Vehicle Code when he rode his bicycle in the opposite direction of traffic, that there was no obstruction in the westbound lanes that prevented Mr. Lopez from riding in those lanes, and that the traffic control setup around the trench conformed with all applicable guidelines.

After a jury trial before Judge Lawrence Appel in Alameda County Superior Court, the jury returned a special verdict finding there was no dangerous condition of public property.

AGHW Holds First Annual Holiday Seminar

On December 3, 2014, AGHW held its first annual holiday seminar at the St. Francis Drake Hotel in San Francisco. The seminar allowed us to showcase our Public Entity and Employment Law practice groups by providing our clients with a legal update on new developments affecting our clients’ needs. The seminar was not only an opportunity to inform our clients of recent legal developments, but it gave us a chance to celebrate AGHW’s one year anniversary and thank those who have helped AGHW have a stellar first year. AGHW looks forward to 2015 and mark your calendars for the first week of December in Union Square with AGHW.

Partner Dale Allen Appointed as Faculty Member for ABOTA’s Masters in Trial Program

AGHW partner Dale Allen recently served as a faculty member for the second year in a row at the San Francisco chapter of ABOTA’s (American Board of Trial Advocates) Masters in Trial presentation.

ABOTA is a long-established and renowned national association of experienced trial lawyers and judges who are dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution.  ABOTA’s membership consists of more than 6,000 top-tier trial lawyers from the plaintiff and defense bars, as well as judges, spread among 90 chapters of the organization.  The San Francisco Chapter of ABOTA counts 300 of Northern California’s best trial attorneys among its membership.  ABOTA is an invitation-only organization, whose members are required to have at least 5 years of active experience as trial lawyers, have tried at least 10 civil jury trials to conclusion, and possess additional litigation experience.

Recently, ABOTA conducted its highly acclaimed Masters in Trial Techniques program, which is a day-long seminar that takes young attorneys through a trial from start to finish.  Highly experienced trial lawyers, including Dale Allen, try an actual case in front of a live jury.  With a three-hour time limit per side, the program includes opening statements, direct and cross-examination of witnesses, and closing arguments.

AGHW is proud of Dale Allen’s selection to the Masters in Trial Techniques trial team.  His selection and participation in this program provides another example of AGHW’s continuing commitment to trial advocacy and excellence.

Defense Verdict in Civil Rights Lawsuit

Another success for Allen, Glaessner, Hazelwood & Werth was obtained by Dale Allen with a defense verdict in David Morse v. San Francisco Bay Area Rapid Transit District et al. This was Dale’s second defense verdict this year for a police officer.

Tried before Magistrate Judge Jacqueline Scott Corley in U.S. District Court, Northern District of California, the case determined whether journalist plaintiff David Morse’s arrest was motivated by a retaliatory animus for his protected speech. After his associate Kevin Allen was successful in obtaining dismissals by summary adjudication of Fourth Amendment unlawful arrest and state-law false imprisonment claims, Dale went to trial to defend the sole remaining claim of retaliatory arrest against defendant BART Deputy Police Chief Dan Hartwig at trial.

Mr. Morse alleged that Chief Hartwig ordered his arrest during a demonstration at the Powell Street BART and MUNI station in September of 2011. The demonstration was one of a series of protests of two high profile police shootings by the BART Police. The protest was called for and took place at the Powell St. BART and MUNI station, in the heart of San Francisco, during rush hour with the avowed intent to so congest the free area that patrons would not be able to use the system unless the police opened the emergency gates of the station. Mr. Morse, a journalist with an independent media group that posted to a website called Indybay, was arrested during the demonstration on the order of Chief Hartwig as an active participant in the demonstration after he failed to leave the group that was blocking the station access and exit. Morse claimed he was unconstitutionally targeted for arrest at the demonstration in retaliation for exercising his right of free speech, including hundreds of articles highly critical of BART officials and the BART Police. Chief Hartwig testified that his sole reason for arresting Morse was because he violated the law, and testified that he told Morse that just because he had a press pass doesn’t mean he can violate the law. The jury agreed and returned a unanimous verdict rejecting Mr. Morse’s claims.

Police Verdict in Wrongful Death Case

Dale and Kevin Allen obtained a defense verdict in Abston v. City of Merced, et al. (February 24, 2014). Taking place in the Eastern District of California, the wrongful-death case concerned use of a Taser and physical restraint against a man high on meth who: (1) drove the wrong-way down Highway 99; (2) assaulted three officers; (3) was effectively immune to the officers’ use-of-force; and (4) resisted officers the entire time, even after he was on the ground. Mr. Abston, a decades-long meth user with a history of heart disease, happened to pass away after the encounter due to his bad heart. The jury’s unanimous defense verdict resoundingly stated that the officers’ use of force was appropriate and that they were in no way responsible for Mr. Abston’s unfortunate passing.

Abston is Dale and Kevin Allen’s second police success in the Eastern District over the past year. In July 2013, they litigated Williams v. City of Merced, at al. After getting numerous claims dismissed at the motion for summary judgment stage, they litigated the remaining claims at trial. Facing a plaintiff-friendly fact pattern (plaintiff was a double-leg amputee), they successfully prevented a plaintiff verdict. The 8-member jury came back hung, evenly split 4-4. Rather than attempt to re-try the case, Plaintiff opted to resolve out of court, a small fraction of his original demand.

Abston and Williams were both against the same plaintiff’s firm: Law Offices of John Burris.

AGHW Founding Partners Selected as 2014 Northern California Super Lawyers

The four partners (Dale Allen, Peter Glaessner, Mark Hazelwood, and Steve Werth) who founded the firm have all been selected as 2014 Northern California Super Lawyers, again confirming their excellent reputation in the Bay Area legal community. Selection is based upon peer nomination, independent research and peer evaluation, conducted by Thompson Reuters. This selectivity is reflected by the fact that approximately 5% of the lawyers practicing in the Bay Area are recognized as Super Lawyers.