January 2006 Volume 56 Number 1
MAGAZINE
The official publication of the Riverside County Bar Association
I
n
T
hIs
I
ssue
:
Reviewing Homelessness
Legal Nurse Consultant
Residents Rights
Who is Taking Care of Grandma?
C O N T E N T S
Riverside Lawyer, January 2006
Publications Committee
Officers of the Bar Association
Officers of the Barristers Association
President
Robyn A. Beilin-Lewis
(951) 686-8848
beilinro@yahoo.com
Vice President John D. Higginbotham Treasurer Charles P. Boylston
Secretary Christopher L. Peterson Editors ........................................................... Michael Bazzo Jacqueline Carey-Wilson Design and Production ........................ PIP Printing Riverside
Cover Design ........................................ PIP Printing Riverside President
Theresa Han Savage
(951) 248-0352
theresa.savage@jud.ca.gov Vice President
Daniel Hantman
(951) 784-4400
dh4mjg@earthlink.net Secretary
Janet A. Nakada
(951) 779-1362
jan@nakada-silva.com President Elect
David T. Bristow
(951) 682-1771
dbristow@rhlaw.com Chief Financial Officer
E. Aurora Hughes
(909) 483-6700
ahugheslaw@aol.com Past President
Michelle Ouellette
(951) 686-1450
michelle.ouellette@bbklaw.com Riverside County Bar Association 4129 Main Street, Suite 100 Riverside, California 92501 Telephone 951-682-1015 Internet www.riversidecountybar.com Facsimile 951-682-0106 E-mail rcba@riversidecountybar.com Robyn Beilin-Lewis
Kirsten Birkedal
Yoginee Braslaw
John Brown
Charlotte Butt
Mike Cappelli
Michael DiVita
Cosmos Eubany
Donna Hecht
James Heiting Aurora Hughes
Gary Ilmanen
Rick Lantz
Mark Mellor
Queenie Ng
Richard Reed
Michael Trenholm
Allen Turner
Glenn Williams
Lisa Yang Director-at-Large Executive Director Charlotte A. Butt (951) 682-1015 charlotte@riversidecountybar.com John E. Brown
(951) 686-1450
john.brown@bbklaw.com Daniel E. Katz
(951) 682-1771
dkatz@rhlaw.com Harry J. Histen III
(951) 682-4121
hhisten@harryhisten.com Harlan B. Kistler
(951) 686-8848
hbkistler@pacbell.net Columns: 3 .................... .Presidents Message by Theresa Han Savage 4 ..................................... .Barristers by Robin Beilin-Lewis 22 ......................... .Litigation Update by Mark A. Mellor 25 ..............................Current Affairs by Richard Brent Reed COVER STORIES: 9 ................. Who is Taking Care of Grandma???? by Harlan B. Kistler 14 ........................ The Legal Nurse Consultant in Elder Abuse Litigation by Penny Watkins and Wilma Bradley 18 .. Resident Rights in Licensed Skilled Nursing Facilities and Residential Care Facilities for the Elderly by Robert P. Manos 20 ............................ Reviewing Homelessness by Joan Thirkettle Features: 6 ................... Judicial Profile: Commissioner Charles Koosed by Donna Thierbach 7 ......................................... Opposing Counsel: Victor Marshall 8 ............................ .Book Review: "Let No Guilty Man Escape" by Bruce E. Todd 12 .................... Grokster and Napster : When is Someone Liable for Inducing or Contributing to the Infringement of a Copyright? by Michael H. Trenholm Departments: Calendar.. . . . . . . . . . . . . . . . ..2
Bench.to.Bar .. . . . . . . . . . . . 24
Bar.Briefs.. . . . . . . . . . . . . . . 27 Classified.Ads... . . . . . . . . . . ..28
Membership .. . . . . . . . . . . . ..28..
Errata .. . . . . . . . . . . . . . . . . ..28.. Riverside Lawyer, January 2006 M ission s tateMent Established in 1894 The Riverside County Bar Association, established in 1894 to foster social interaction between the bench and bar, is a professional organization that pro- vides continuing education and offers an arena to resolve various problems that face the justice system and attorneys practicing in Riverside County. RCBA Mission Statement The mission of the Riverside County Bar Association is to: Serve its members, and indirectly their clients, by implementing programs that will enhance the professional capabilities and satisfaction of each of its members. Serve its community by implementing programs that will provide opportu- nities for its members to contribute their unique talents to enhance the quality of life in the community. Serve the legal system by implementing programs that will improve access to legal services and the judicial system, and will promote the fair and efficient administration of justice. Membership Benefits Involvement in a variety of legal entities: Lawyer Referral Service (LRS), Pub- lic Service Law Corporation (PSLC), Tel-Law, Fee Arbitration, Client Relations, Dispute Resolution Service (DRS), Barristers, Leo A. Deegan Inn of Court, Inland Empire Chapter of the Federal Bar Association, Mock Trial, State Bar Conference of Delegates, and Bridging the Gap. Membership meetings monthly (except July and August) with keynote speak- ers, and participation in the many committees and sections. Eleven issues of Riverside Lawyer published each year to update you on State Bar matters, ABA issues, local court rules, open forum for communication and timely business matters. Social gatherings throughout the year: Installation of RCBA and Barristers Officers dinner, Annual Joint Barristers and Riverside Legal Secretaries dinner, Law Day activities, Good Citizenship Award ceremony for Riverside County high schools, and other special activities. Continuing Legal Education brown bag lunches and section workshops. RCBA is a certified provider for MCLE programs. MBNA Platinum Plus MasterCard, and optional insurance programs. Discounted personal disability income and business overhead protection for the attorney and long-term care coverage for the attorney and his or her family. JANUARY 19 CLE Brown Bag Series New.Civil.Developments Speaker:..Judge.Gloria.Trask,.Riverside. Superior.Court
RCBA.3rd.Floor..Noon
MCLE 21 California Women Lawyer So,.You.Want.to.be.a.Judge? Mission.Inn,.3649.Mission.Inn.Ave.,. Riverside
8:00.am..4:00.p.m.
MCLE 25 Estate Planning, Probate & Trust Law Section RCBA.3rd.Floor..Noon
MCLE 26 CLE Brown Bag Series Life.in.the.Fast.Lane:.How.SPEED. Affects.Lawyers Speaker:.Helena.Rouhe.Hadden,.New. Directions.for.Women
RCBA.3rd.Floor..Noon
MCLE.(Substance.Abuse) 30 RCBA/SBCBA Construction Defect Section Paulson.Reporting,.Riverside.. 4:00.p.m. FEBRUARY 1 Bar Publications Committee RCBA..Noon 2 Mock Trial Scoring Attorney Orientation RCBA.3rd.Floor..Noon
MCLE 7 Joint RCBA/SBCBA Environmental Law Section RCBA.3rd.Floor..Noon
MCLE 8 Mock Trial Steering Committee RCBA..Noon Barristers Cask.n.Cleaver,.6:00.p.m.
MCLE 13 HOLIDAY Riverside Lawyer is published 11 times per year by the Riverside County Bar Association (RCBA) and is distributed to RCBA members, Riverside
County judges and administrative officers of the court, community leaders
and others interested in the advancement of law and justice. Advertising and
announcements are due by the 6 th day of the month preceding publications (e.g., October 6 for the November issue). Articles are due no later than 45
days preceding publication. All articles are subject to editing. RCBA members
receive a subscription automatically. Annual subscriptions are $25.00 and
single copies are $3.50. Submission of articles and photographs to Riverside Lawyer will be deemed to be authorization and license by the author to publish the material in
Riverside Lawyer. The material printed in Riverside Lawyer does not necessarily reflect the opinions of the RCBA, the editorial staff, the Publication Committee, or other
columnists. Legal issues are not discussed for the purpose of answering specif-
ic questions. Independent research of all issues is strongly encouraged. M ission s tateMent C alendar Riverside Lawyer, January 2006 H appy New Year! At the beginning of each year, I, like many of you, have ideas about
what I can do to better myself. You guessed cor-
rectly, I am referring to New Years resolutions. We
make them every year; are diligent about sticking
with it this year . . . for about a week; forget what
we resolved to do by mid-year; and start thinking
about new ones toward the end of the year. To
make it easier on myself, I have decided to make
just a single resolution this year to be a calmer
person (i.e., to refrain from screaming at my chil-
dren). I will let you know about my progress in
June; that is, if I can remember my resolution. On a more serious note, what can we, as members of the RCBA, do this year to improve
our community? Support Senate Bill 56 (S.B. 56)
a bill authorizing the creation of new judicial
positions in California. As many of you know,
the Inland Empire is in dire need of new judges.
Since 2000, Riverside Countys population has
increased by 20 percent; the court grew by one
judge. Currently, Riverside has 69 judges and
commissioners. Our caseload, however, justifies
137.5 judicial officers. The average caseload per
judge in Riverside is approximately 6,400. What does a shortage of judges mean? Delay in getting cases through our courts. In December
2005, the Riverside Superior Court declared a
moratorium on civil trials for six weeks. This is
the second moratorium on civil trials; there was
a previous moratorium in June 2004. In both
instances, the court had to declare the morato-
rium in order to hear criminal cases that face pos-
sible dismissal if they fail to start within 10 days of
a trial date being set. Interestingly, although San
Bernardino also copes with a shortage of judges
(caseload of 6,200 per judge), it has not had to by Theresa Han Savage suspend civil trials. One of the main differences between the two
counties is the number of felony jury trials. In the 2003-2004
fiscal year, Riverside County had 314 felony jury trials while San
Bernardino County had 188. What can you do to help? You can help by supporting S.B. 56. S.B. 56 authorizes the creation of 150 new judicial positions
in California over a three-year period; Riverside would get 19 new
judges, and San Bernardino would get 23 new judges. Although
this is a far cry from the number of judges the Inland Empire
actually needs, it is a good start. The RCBA will be sending out a
letter soliciting your support for S.B. 56 please be on the look
out for it. We will be working with the San Bernardino County
Bar Association and other local bar associations to drum up sup-
port for S.B. 56 in the Legislature. If you know any legislators or
others involved in the political process, please call them and let
them know how important the passage of S.B. 56 is not only for
the legal community, but for the community in general. Please
contact me if you have any other ideas about how we can reach out
to the Legislature. On a final note, on behalf of the RBCA, I would like to express our deepest sympathies on the passing of one of Riversides pre-
eminent attorneys, Donald Powell, in December. He will be greatly
missed. Theresa Han Savage, president of the Riverside County Bar Association,
is a research attorney at the Court of Appeal, Fourth Appellate District,
Division Two. Riverside Lawyer, January 2006 B arristers celebrated the end of 2005 with a wonderful holiday party that it co-hosted along with the Riverside County Bar Association and
the Riverside judiciary. The event raised over $600 in donations to the RCBA
Elves program. To those who made donations, we thank you for your gener-
osity. I would also like to extend a special thank you to Judge Waters, David
Bristow, Georgina Flores of County Facilities Management, Susie Slaughter,
Shane Collins (Catering by Shane), and Charlotte Butt for all of your help in
making this a successful event. At our November meeting, Barristers was pleased to present J. Dana MitchellWeiler of the Law Office of J. Dana MitchellWeiler, who joined us as
our guest speaker. Dana educated us on contested wills and trusts. I dont
know about you, but as soon as someone finds out that I am an attorney, I
am always asked questions about estate planning and wills. Unfortunately,
my area of practice does not include that type of law, so I am stuck dusting
off whatever I have retained from law school. It was most appreciated to
now have a working knowledge of what goes on in a contested estate case for
whenever those types of questions are posed to me again! On behalf of the
Barristers Board and all of our members, I would like to thank Dana again
for taking time out of his busy schedule to come and speak to our group. It
was a pleasure having you there! In addition to Dana MitchellWeiler, Judy Davis of VIP Mentors also spoke at our meeting. Judy was joined by Jessica, a recent parolee, who has clearly
benefited from this rewarding program as the mentee of a former public
defender. Jessicas story was inspiring and reminded us all of how we can all
make a difference in our community. We are pleased to announce the following schedule of speakers for the upcoming months: February: Consideration of Criminal Law Implications in Civil Cases, with Chris Harmon (Harmon & Harmon) and Chad Firetag (Law Offices of
Paul Grech). March: A Practice Guide to Filing Documents with the Court, with Inga McElyea, Executive Officer/Clerk of the Riverside Superior Court. By Robyn Beilin-Lewis, Barristers President B arristers April: Environmental Law, with Steve Anderson (Best Best & Krieger). May and June: To be announced.
For those of you unfamiliar with Barristers, it is an organization designed
for newer attorneys in our legal commu-
nity to have the opportunity to meet other
new attorneys and to sit in on MCLE
lectures from esteemed members of our
local judiciary and bar association, who
give practice tips and pointers that are of
special interest to less seasoned associates.
We encourage all new attorneys to join us,
no matter where you may practice not
just civil litigators, but also new deputy
district attorneys, deputy public defend-
ers, other criminal defense attorneys, and
deputies from the City Attorneys office. Although the definition of a new attorney is an attorney less than 37 years
of age or with under seven years of prac-
tice, we also welcome all members of the
Riverside County and San Bernardino
County Bar Associations. I think we
can all agree that, even though you may
no longer consider yourself a new or
young attorney, we can never stop
learning new things in life, especially
in our profession. Barristers is blessed
to have fantastic speakers month after
month, and we all should take advantage
of them. Plus, it is always an advantage
for everyone, regardless of what point you
are at in your career, to get to know other
members of your profession. If you would like more information regarding Barristers, you can contact me
at (951) 686-8848 or at beilinro@yahoo.
com. Riverside Lawyer, January 2006 Riverside Lawyer, January 2006 Whenever I meet local attorneys, commissioners and judges, there are two questions I am always curious about:
(1) why did they decide to become attorneys and (2) how
did they come to practice in Riverside County? It seems Commissioner Koosed has some very interest- ing answers. Commissioner Koosed developed an interest in and appreciation of law when he became involved in student
government in junior high as his class representative. He
enjoyed the student government process and thought that
the practice of law would be equally rewarding. In pursuit
of his goal to become an attorney, he was able to pay his
way through undergraduate school by getting a real estate
license and selling mortgages. After graduating from UCLA
in December 1990, he had an interest in sports, so he chose
Southwestern School of Law in Los Angeles, because they
had sports law classes and an internship program. He
had the privilege of interning one semester with the L.A.
Raiders when they were based in El Segundo. Although
he did not learn as much as he had hoped, he retained his
desire to practice sports law and wrote a number of letters
to various teams during his last years of law school. He did
not have much success in his letter-writing campaign, but
many of the teams responded with very nice letters, which
he has kept to this day. In his last years of law school, Commissioner Koosed clerked for a small firm in Encino, California. However,
when he graduated, he quit to devote his full time to
studying for the bar. He grew up in Torrance, San Pedro
and West Los Angeles, but while he was in law school, his
mother moved to Palm Springs. Commissioner Koosed,
being a starving, broke, deeply in debt recent law school
graduate, made the decision to move in with his mother
while he waited for the bar results. Once he moved to the
desert, he truly began to enjoy the area and decided he
would seek employment in Indio. In December 1994, he interviewed for both the Riverside County District Attorneys and Public Defenders Indio offic-
es, but neither was hiring at that time. Then, in January
1995, he had his big break. A friend asked Commissioner
Koosed to make an appearance for him in a criminal matter
in Indio court. It was the Commissioners first paying job
as an attorney, and he earned a whole $75! He had never
been in a courtroom before, so he had to ask what he was
supposed to do. He arrived early, gave the clerk his card and
explained why he was there. He took a seat and waited, and
waited and waited. The case was never called that morn- by Donna Thierbach J udiCial P rofile : C oMMissioner C harles K oosed ing (it turned out the client
had not been transported by
the sheriff). However, while
he was waiting he met Pat
Lahti and Barbara Brand of
the conflict defense panel.
They struck up a conversa-
tion, and by the end of the
day, he had been offered a
position as a motion attor-
ney, earning $25 per hour. Thereafter, he began stalking the
conflict attorneys to see if they needed any motions written;
he learned the value of bringing donuts to secretaries. Then,
after six months, the conflict panel offered him a contract as
a trial attorney. Initially, he interviewed his clients in the law
library and he had just a P.O. box and a voice mail phone. Also during this time, he met his wife. A mutual friend had been trying to set up a meeting between them, but it just
never worked out. Then one evening, just by chance, they all
ran into each other! He and his wife have now been married
seven years and have two preschool boys. His wife previ-
ously was the Director for Revenue for Marriott. However,
she retired when they decided to start a family and is now
a full-time mother and homemaker. When asked about his
good luck in meeting Pat and Barbara of the conflict panel in
an Indio courtroom and meeting his future wife by chance,
Commissioner Koosed chalked it up to kismet. Commissioner Koosed enjoys golfing and spending time with his family. His sons love computer games and wrestling.
He and his wife love to travel and hope to do some more
extensive traveling once their boys are older. Since becoming
a commissioner on June 22, 2005, Commissioner Koosed has
been doing a lot of traveling on the Interstate 10, in that he
commutes to Riverside from Indian Wells each day. Commissioner Koosed loved trials, but trial work required a lot of long hours, and that he does not miss. He does miss
his fellow Indio conflict panel attorneys, though. Not only
did they have lunch together every day and provide a lot of
support, they are very good friends. As a trial attorney, one
of his greatest successes was a recent trial in February 2005,
in which he obtained a full acquittal for his client, Richard
Walker, in a death penalty case. Since Commissioner Koosed had practiced primarily criminal law, he said he had a lot to learn in his first assign-
ment as a commissioner, which is unlawful detainers and
small claims. However, he is enjoying the assignment and
the camaraderie of the civil judges and commissioners. Commissioner Charles Koosed Riverside Lawyer, January 2006 V ictor Marshall was inspired to become an attor-
ney by another attorney and
another Marshall Thurgood.
In fact, it was Thurgood Marshall
School of Law in Houston that
gave Victor his law degree.
Born, raised, and educated in
Chicago, he was drawn to the
law at an early age as a means of redressing social injus-
tice. Consequently, Victor received his practical training
in the San Bernardino Public Defenders Office, where he
tried more cases than any other lawyer while employed
there, and at the district attorneys office, before coming
to Riverside, where he set up shop as a criminal defense
attorney about seven years ago. In the eleven years that
he has practiced law, Victor has found time to skydive,
hang glide, ski, golf, jog, play basketball, enter bodybuild-
ing competitions, and is a husband and father of three
children. Victors community activities include volunteering with the Inland Empire Latino Lawyers Association and
the San Bernardino Chapter of the NAACP. He received
a special commendation from Mayor Loveridge for excep-
tional work as one of the first lawyers in Volunteers in
Parole and has also aided the indigent at Inland Counties
Legal Services. Prior to that, he worked for legal aid in
Los Angeles. Victor had the privilege of giving a televised
public speech by the statue of Dr. Martin Luther King,
Jr. here in Riverside. He also has the honor of being an
adjunct professor at Loma Linda University. Victors practice is based at his office on Magnolia Avenue overlooking White Park (the occasional free con-
cert is one of the parks perks). Apart from Thurgood
Marshalls inspiring example, it was Victors uncle, Ehalid
Dinkane, who encouraged him to dive into jurisprudence,
but it was the campus unrest at Victors alma mater
Eastern Illinois University that made him want to speak
out against discrimination. The best avenue for that
was criminal law. It has been an education. Ive never
learned more than from practicing law, observed Victor.
The beauty of trying cases with D.A.s is developing a
trust relationship that allows you to resolve issues outside
the courtroom. o PPosing C ounsel : V iCtor M arshall Sitting as a judge pro tem has given him enhanced empathy with the judges before whom he appears. Most
of Victors courtroom experiences have been positive
ones: For the most part, judges have been good to work
with. Victor also appreciates the collegiality that he
enjoys with prosecutors, though professional camaraderie
is, occasionally, tested by irony. In one instance, Victor
had to put one district attorney on the stand to destroy
another district attorneys case: the first D.A. testified
that the victim allegedly assaulted by Victors client had,
in fact, no bruises, much to the dismay of the second D.A.
Nevertheless, the incident made for a good story to tell at
social gatherings. With respect to trial work, Victor learned from the best, including Gerry Spence's Trial Lawyers College and
the National Criminal Defense College. He credits most
of his training to his mentor, Grover Porter. Despite his easy-going approach to life, Victor is con- cerned about the high mortality rate among attorneys.
However, Victor, anything but sedentary at age forty,
should have the luxury of deferring such concerns for
quite a few years. Victor Marshall Riverside Lawyer, January 2006 Let No Guilty Man Escape
The Judicial Biography of Hanging Judge Isaac C.
Parker
By Roger H. Tuller
University of Oklahoma Press (April 2001), 210 pp.
ISBN 0-8061-3306-6 In the old Wild West, he was responsible for the deaths of more men and women than Billy the Kid, Jesse James,
John Wesley Hardin, Wyatt Earp, or Wild Bill Hickok. Yet
he never shot, stabbed or bludgeoned anyone to death. His
method of execution was the rope. His name was Isaac
Charles Parker, but he was more commonly known as the
original Hanging Judge. Parker was born on October 15, 1938, and he died (of dropsy) on November 17, 1886. In between his birth and
death, he was responsible for sentencing 161 convicted
criminals to their deaths. Of that number, 79 were actu-
ally hanged. This excellent biography of Isaac Parker was written by Roger Tuller, who is an instructor of history at SUNY
College in Cortland, New York. Tuller presents an inter-
esting account of Parkers rise to become the law of the
land as U.S. District Judge for the Western District of
Arkansas, located in Fort Smith. Although he grew up on a farm, Parker disliked hard labor, and instead developed an interest in books, history,
and literature. At age 17, he decided to pursue a career in
law, which was a logical choice, given his interests. Back
in Parkers time, there were only 13 law schools in the
country, and many attorneys did not attend a formal law
school. Legal training often consisted of a combination
of apprenticeship and self-directed study of legal clas-
sics such as Greenleaf on Evidence and Blackstones
Commentaries on the Laws of England. Tuller mentions
that passing a formal bar examination, as we know it today,
often was not a requirement. He describes one incident in
which an Ohio jurist, after a cursory five-minute examina-
tion of a successful candidate, exclaimed Oh, hell, that
fellow can take care of himself. Lets go get liquor. Parker passed his examination in 1859 at age 21. His early career included a position, starting in 1861,
as City Attorney for St. Joseph, Missouri. His duties
included prosecution of violators of local ordinances. In
one instance, he was involved in obtaining a conviction of Joseph Robideaux the founder of St. Joe for public
drunkenness. He first became a judge in 1868, when he won a six- year term on the Twelfth Missouri Circuit. In March of
1875, he was appointed by President Ulysses S. Grant to
preside over the Western District of Arkansas. Prior to this
appointment, the Western District had been subject to cor-
ruption and malfeasance by Parkers predecessor (William
Story). Court sessions were rarely held and punishment
of law-breakers was virtually nonexistent. Parkers regime
brought about an almost immediate change when, on
September 7, 1875, six convicted murders were lined up
on the gallows. With 5,000 spectators looking on, Parkers
executioner George Maledon moved to the left of the plat-
form, grasped a lever and opened the trap. It was now
clear that Parker, unlike his corrupt and lenient predeces-
sor, had no qualms about punishing criminals. This execution and the ones that followed over the next 20 years firmly established Parkers lasting image as
the Hanging Judge. The Fort Smith gallows could han-
dle up to 12 people at one time. During a time when most
hangings were carried out behind closed walls, Parkers
hangings were public displays, which became mass out-
ings for families living as far as 50 miles away. Although
a solemn occasion, these hangings provided a picnic-like
atmosphere and presented an opportunity for frontier set-
tlers who were separated by many miles to get together.
Whiskey vendors and other hawkers circulated through-
out the crowd. News of the hangings was published in
newspapers across the country. It should be noted that the Western District covered 74,000 square miles, sprawling across 18 counties and the
entire Indian Territory (which included the Five Civilized
Tribes: the Choctaw, Chickasaw, Cherokee, Creek, and
Seminole). Indian courts governed their own people and
Parkers court handled cases involving U.S. citizens and
disputes between the tribes. The rugged territory was a
haven for criminals. Federal statutes were upheld by a
small force of federal marshals. To illustrate the danger
presented to these marshals in covering this territory,
statistics reveal that at least 20 deputy marshals were
killed there between 1881 and 1886. It was for this reason,
among others, that Parker felt the need to establish law
and order in this wild territory. B ooK r eView by Bruce E. Todd (continued on page 17) Riverside Lawyer, January 2006 T he purpose of this article is to acquaint attor- neys with actions against skilled nursing facilities for
neglect and abuse of their patients or residents. For
purposes of this article, a skilled nursing facility or con-
valescent hospital is one that provides 24-hour skilled
nursing care, unlike a residential care facility, which pro-
vides basic care to independent elders who do not require
medical care. The legislature has provided enhanced remedies on tort claims against nursing homes to motivate plaintiff
attorneys to represent the elderly. Prior to the legislative
enactments, it was difficult for the elderly to obtain rep-
resentation because they did not fit the typical plaintiff
model, in which the injured party is disabled due to the
consequence of the injury, with significant lost wages or
medical expenses. Rather, the nursing home client has
pre-existing illnesses, rendering him or her frail, sick
and jobless, not to mention a poor quality of life and a
short life expectancy. Nevertheless, recent changes in
the law have made this type of litigation worth pursuing,
considering that the 65-year-plus and subset 85-year-plus
population are both growing rapidly in the United States.
Also, a substantial percentage of California nursing homes
have been cited continuously for very serious quality-of-
care problems or substandard care. Litigating nursing home cases is similar to litigat- ing other personal injury cases in some respects, yet
critically different in many ways. Nursing home cases
are governed by Welfare and Institutions Code, section
15600 et seq. (hereinafter referred to as the Elder Abuse
Act), and are completely different from cases concerning
the medical negligence of physicians and hospitals, com-
monly referred to as medical malpractice cases, which are
governed by MICRA legislation. The Elder Abuse Act was
enacted to protect the elderly and dependent adults from
abuse and neglect. The legislature determined that the
elderly have special needs and are very vulnerable to the
risk of abuse, neglect and abandonment. These statutes
create civil remedies against individuals and entities that
commit elder abuse. Generally, elder abuse is defined as [p]hysical abuse, neglect, financial abuse, abandonment, isolation, or other
treatment with resulting physical harm or pain or mental suffering. (Welf. & Inst. Code,
Vice President John D. Higginbotham Treasurer Charles P. Boylston
Secretary Christopher L. Peterson Editors ........................................................... Michael Bazzo Jacqueline Carey-Wilson Design and Production ........................ PIP Printing Riverside
Cover Design ........................................ PIP Printing Riverside President
Theresa Han Savage
(951) 248-0352
theresa.savage@jud.ca.gov Vice President
Daniel Hantman
(951) 784-4400
dh4mjg@earthlink.net Secretary
Janet A. Nakada
(951) 779-1362
jan@nakada-silva.com President Elect
David T. Bristow
(951) 682-1771
dbristow@rhlaw.com Chief Financial Officer
E. Aurora Hughes
(909) 483-6700
ahugheslaw@aol.com Past President
Michelle Ouellette
(951) 686-1450
michelle.ouellette@bbklaw.com Riverside County Bar Association 4129 Main Street, Suite 100 Riverside, California 92501 Telephone 951-682-1015 Internet www.riversidecountybar.com Facsimile 951-682-0106 E-mail rcba@riversidecountybar.com Robyn Beilin-Lewis
Kirsten Birkedal
Yoginee Braslaw
John Brown
Charlotte Butt
Mike Cappelli
Michael DiVita
Cosmos Eubany
Donna Hecht
James Heiting Aurora Hughes
Gary Ilmanen
Rick Lantz
Mark Mellor
Queenie Ng
Richard Reed
Michael Trenholm
Allen Turner
Glenn Williams
Lisa Yang Director-at-Large Executive Director Charlotte A. Butt (951) 682-1015 charlotte@riversidecountybar.com John E. Brown
(951) 686-1450
john.brown@bbklaw.com Daniel E. Katz
(951) 682-1771
dkatz@rhlaw.com Harry J. Histen III
(951) 682-4121
hhisten@harryhisten.com Harlan B. Kistler
(951) 686-8848
hbkistler@pacbell.net Columns: 3 .................... .Presidents Message by Theresa Han Savage 4 ..................................... .Barristers by Robin Beilin-Lewis 22 ......................... .Litigation Update by Mark A. Mellor 25 ..............................Current Affairs by Richard Brent Reed COVER STORIES: 9 ................. Who is Taking Care of Grandma???? by Harlan B. Kistler 14 ........................ The Legal Nurse Consultant in Elder Abuse Litigation by Penny Watkins and Wilma Bradley 18 .. Resident Rights in Licensed Skilled Nursing Facilities and Residential Care Facilities for the Elderly by Robert P. Manos 20 ............................ Reviewing Homelessness by Joan Thirkettle Features: 6 ................... Judicial Profile: Commissioner Charles Koosed by Donna Thierbach 7 ......................................... Opposing Counsel: Victor Marshall 8 ............................ .Book Review: "Let No Guilty Man Escape" by Bruce E. Todd 12 .................... Grokster and Napster : When is Someone Liable for Inducing or Contributing to the Infringement of a Copyright? by Michael H. Trenholm Departments: Calendar.. . . . . . . . . . . . . . . . ..2
Bench.to.Bar .. . . . . . . . . . . . 24
Bar.Briefs.. . . . . . . . . . . . . . . 27 Classified.Ads... . . . . . . . . . . ..28
Membership .. . . . . . . . . . . . ..28..
Errata .. . . . . . . . . . . . . . . . . ..28.. Riverside Lawyer, January 2006 M ission s tateMent Established in 1894 The Riverside County Bar Association, established in 1894 to foster social interaction between the bench and bar, is a professional organization that pro- vides continuing education and offers an arena to resolve various problems that face the justice system and attorneys practicing in Riverside County. RCBA Mission Statement The mission of the Riverside County Bar Association is to: Serve its members, and indirectly their clients, by implementing programs that will enhance the professional capabilities and satisfaction of each of its members. Serve its community by implementing programs that will provide opportu- nities for its members to contribute their unique talents to enhance the quality of life in the community. Serve the legal system by implementing programs that will improve access to legal services and the judicial system, and will promote the fair and efficient administration of justice. Membership Benefits Involvement in a variety of legal entities: Lawyer Referral Service (LRS), Pub- lic Service Law Corporation (PSLC), Tel-Law, Fee Arbitration, Client Relations, Dispute Resolution Service (DRS), Barristers, Leo A. Deegan Inn of Court, Inland Empire Chapter of the Federal Bar Association, Mock Trial, State Bar Conference of Delegates, and Bridging the Gap. Membership meetings monthly (except July and August) with keynote speak- ers, and participation in the many committees and sections. Eleven issues of Riverside Lawyer published each year to update you on State Bar matters, ABA issues, local court rules, open forum for communication and timely business matters. Social gatherings throughout the year: Installation of RCBA and Barristers Officers dinner, Annual Joint Barristers and Riverside Legal Secretaries dinner, Law Day activities, Good Citizenship Award ceremony for Riverside County high schools, and other special activities. Continuing Legal Education brown bag lunches and section workshops. RCBA is a certified provider for MCLE programs. MBNA Platinum Plus MasterCard, and optional insurance programs. Discounted personal disability income and business overhead protection for the attorney and long-term care coverage for the attorney and his or her family. JANUARY 19 CLE Brown Bag Series New.Civil.Developments Speaker:..Judge.Gloria.Trask,.Riverside. Superior.Court
RCBA.3rd.Floor..Noon
MCLE 21 California Women Lawyer So,.You.Want.to.be.a.Judge? Mission.Inn,.3649.Mission.Inn.Ave.,. Riverside
8:00.am..4:00.p.m.
MCLE 25 Estate Planning, Probate & Trust Law Section RCBA.3rd.Floor..Noon
MCLE 26 CLE Brown Bag Series Life.in.the.Fast.Lane:.How.SPEED. Affects.Lawyers Speaker:.Helena.Rouhe.Hadden,.New. Directions.for.Women
RCBA.3rd.Floor..Noon
MCLE.(Substance.Abuse) 30 RCBA/SBCBA Construction Defect Section Paulson.Reporting,.Riverside.. 4:00.p.m. FEBRUARY 1 Bar Publications Committee RCBA..Noon 2 Mock Trial Scoring Attorney Orientation RCBA.3rd.Floor..Noon
MCLE 7 Joint RCBA/SBCBA Environmental Law Section RCBA.3rd.Floor..Noon
MCLE 8 Mock Trial Steering Committee RCBA..Noon Barristers Cask.n.Cleaver,.6:00.p.m.
MCLE 13 HOLIDAY Riverside Lawyer is published 11 times per year by the Riverside County Bar Association (RCBA) and is distributed to RCBA members, Riverside
County judges and administrative officers of the court, community leaders
and others interested in the advancement of law and justice. Advertising and
announcements are due by the 6 th day of the month preceding publications (e.g., October 6 for the November issue). Articles are due no later than 45
days preceding publication. All articles are subject to editing. RCBA members
receive a subscription automatically. Annual subscriptions are $25.00 and
single copies are $3.50. Submission of articles and photographs to Riverside Lawyer will be deemed to be authorization and license by the author to publish the material in
Riverside Lawyer. The material printed in Riverside Lawyer does not necessarily reflect the opinions of the RCBA, the editorial staff, the Publication Committee, or other
columnists. Legal issues are not discussed for the purpose of answering specif-
ic questions. Independent research of all issues is strongly encouraged. M ission s tateMent C alendar Riverside Lawyer, January 2006 H appy New Year! At the beginning of each year, I, like many of you, have ideas about
what I can do to better myself. You guessed cor-
rectly, I am referring to New Years resolutions. We
make them every year; are diligent about sticking
with it this year . . . for about a week; forget what
we resolved to do by mid-year; and start thinking
about new ones toward the end of the year. To
make it easier on myself, I have decided to make
just a single resolution this year to be a calmer
person (i.e., to refrain from screaming at my chil-
dren). I will let you know about my progress in
June; that is, if I can remember my resolution. On a more serious note, what can we, as members of the RCBA, do this year to improve
our community? Support Senate Bill 56 (S.B. 56)
a bill authorizing the creation of new judicial
positions in California. As many of you know,
the Inland Empire is in dire need of new judges.
Since 2000, Riverside Countys population has
increased by 20 percent; the court grew by one
judge. Currently, Riverside has 69 judges and
commissioners. Our caseload, however, justifies
137.5 judicial officers. The average caseload per
judge in Riverside is approximately 6,400. What does a shortage of judges mean? Delay in getting cases through our courts. In December
2005, the Riverside Superior Court declared a
moratorium on civil trials for six weeks. This is
the second moratorium on civil trials; there was
a previous moratorium in June 2004. In both
instances, the court had to declare the morato-
rium in order to hear criminal cases that face pos-
sible dismissal if they fail to start within 10 days of
a trial date being set. Interestingly, although San
Bernardino also copes with a shortage of judges
(caseload of 6,200 per judge), it has not had to by Theresa Han Savage suspend civil trials. One of the main differences between the two
counties is the number of felony jury trials. In the 2003-2004
fiscal year, Riverside County had 314 felony jury trials while San
Bernardino County had 188. What can you do to help? You can help by supporting S.B. 56. S.B. 56 authorizes the creation of 150 new judicial positions
in California over a three-year period; Riverside would get 19 new
judges, and San Bernardino would get 23 new judges. Although
this is a far cry from the number of judges the Inland Empire
actually needs, it is a good start. The RCBA will be sending out a
letter soliciting your support for S.B. 56 please be on the look
out for it. We will be working with the San Bernardino County
Bar Association and other local bar associations to drum up sup-
port for S.B. 56 in the Legislature. If you know any legislators or
others involved in the political process, please call them and let
them know how important the passage of S.B. 56 is not only for
the legal community, but for the community in general. Please
contact me if you have any other ideas about how we can reach out
to the Legislature. On a final note, on behalf of the RBCA, I would like to express our deepest sympathies on the passing of one of Riversides pre-
eminent attorneys, Donald Powell, in December. He will be greatly
missed. Theresa Han Savage, president of the Riverside County Bar Association,
is a research attorney at the Court of Appeal, Fourth Appellate District,
Division Two. Riverside Lawyer, January 2006 B arristers celebrated the end of 2005 with a wonderful holiday party that it co-hosted along with the Riverside County Bar Association and
the Riverside judiciary. The event raised over $600 in donations to the RCBA
Elves program. To those who made donations, we thank you for your gener-
osity. I would also like to extend a special thank you to Judge Waters, David
Bristow, Georgina Flores of County Facilities Management, Susie Slaughter,
Shane Collins (Catering by Shane), and Charlotte Butt for all of your help in
making this a successful event. At our November meeting, Barristers was pleased to present J. Dana MitchellWeiler of the Law Office of J. Dana MitchellWeiler, who joined us as
our guest speaker. Dana educated us on contested wills and trusts. I dont
know about you, but as soon as someone finds out that I am an attorney, I
am always asked questions about estate planning and wills. Unfortunately,
my area of practice does not include that type of law, so I am stuck dusting
off whatever I have retained from law school. It was most appreciated to
now have a working knowledge of what goes on in a contested estate case for
whenever those types of questions are posed to me again! On behalf of the
Barristers Board and all of our members, I would like to thank Dana again
for taking time out of his busy schedule to come and speak to our group. It
was a pleasure having you there! In addition to Dana MitchellWeiler, Judy Davis of VIP Mentors also spoke at our meeting. Judy was joined by Jessica, a recent parolee, who has clearly
benefited from this rewarding program as the mentee of a former public
defender. Jessicas story was inspiring and reminded us all of how we can all
make a difference in our community. We are pleased to announce the following schedule of speakers for the upcoming months: February: Consideration of Criminal Law Implications in Civil Cases, with Chris Harmon (Harmon & Harmon) and Chad Firetag (Law Offices of
Paul Grech). March: A Practice Guide to Filing Documents with the Court, with Inga McElyea, Executive Officer/Clerk of the Riverside Superior Court. By Robyn Beilin-Lewis, Barristers President B arristers April: Environmental Law, with Steve Anderson (Best Best & Krieger). May and June: To be announced.
For those of you unfamiliar with Barristers, it is an organization designed
for newer attorneys in our legal commu-
nity to have the opportunity to meet other
new attorneys and to sit in on MCLE
lectures from esteemed members of our
local judiciary and bar association, who
give practice tips and pointers that are of
special interest to less seasoned associates.
We encourage all new attorneys to join us,
no matter where you may practice not
just civil litigators, but also new deputy
district attorneys, deputy public defend-
ers, other criminal defense attorneys, and
deputies from the City Attorneys office. Although the definition of a new attorney is an attorney less than 37 years
of age or with under seven years of prac-
tice, we also welcome all members of the
Riverside County and San Bernardino
County Bar Associations. I think we
can all agree that, even though you may
no longer consider yourself a new or
young attorney, we can never stop
learning new things in life, especially
in our profession. Barristers is blessed
to have fantastic speakers month after
month, and we all should take advantage
of them. Plus, it is always an advantage
for everyone, regardless of what point you
are at in your career, to get to know other
members of your profession. If you would like more information regarding Barristers, you can contact me
at (951) 686-8848 or at beilinro@yahoo.
com. Riverside Lawyer, January 2006 Riverside Lawyer, January 2006 Whenever I meet local attorneys, commissioners and judges, there are two questions I am always curious about:
(1) why did they decide to become attorneys and (2) how
did they come to practice in Riverside County? It seems Commissioner Koosed has some very interest- ing answers. Commissioner Koosed developed an interest in and appreciation of law when he became involved in student
government in junior high as his class representative. He
enjoyed the student government process and thought that
the practice of law would be equally rewarding. In pursuit
of his goal to become an attorney, he was able to pay his
way through undergraduate school by getting a real estate
license and selling mortgages. After graduating from UCLA
in December 1990, he had an interest in sports, so he chose
Southwestern School of Law in Los Angeles, because they
had sports law classes and an internship program. He
had the privilege of interning one semester with the L.A.
Raiders when they were based in El Segundo. Although
he did not learn as much as he had hoped, he retained his
desire to practice sports law and wrote a number of letters
to various teams during his last years of law school. He did
not have much success in his letter-writing campaign, but
many of the teams responded with very nice letters, which
he has kept to this day. In his last years of law school, Commissioner Koosed clerked for a small firm in Encino, California. However,
when he graduated, he quit to devote his full time to
studying for the bar. He grew up in Torrance, San Pedro
and West Los Angeles, but while he was in law school, his
mother moved to Palm Springs. Commissioner Koosed,
being a starving, broke, deeply in debt recent law school
graduate, made the decision to move in with his mother
while he waited for the bar results. Once he moved to the
desert, he truly began to enjoy the area and decided he
would seek employment in Indio. In December 1994, he interviewed for both the Riverside County District Attorneys and Public Defenders Indio offic-
es, but neither was hiring at that time. Then, in January
1995, he had his big break. A friend asked Commissioner
Koosed to make an appearance for him in a criminal matter
in Indio court. It was the Commissioners first paying job
as an attorney, and he earned a whole $75! He had never
been in a courtroom before, so he had to ask what he was
supposed to do. He arrived early, gave the clerk his card and
explained why he was there. He took a seat and waited, and
waited and waited. The case was never called that morn- by Donna Thierbach J udiCial P rofile : C oMMissioner C harles K oosed ing (it turned out the client
had not been transported by
the sheriff). However, while
he was waiting he met Pat
Lahti and Barbara Brand of
the conflict defense panel.
They struck up a conversa-
tion, and by the end of the
day, he had been offered a
position as a motion attor-
ney, earning $25 per hour. Thereafter, he began stalking the
conflict attorneys to see if they needed any motions written;
he learned the value of bringing donuts to secretaries. Then,
after six months, the conflict panel offered him a contract as
a trial attorney. Initially, he interviewed his clients in the law
library and he had just a P.O. box and a voice mail phone. Also during this time, he met his wife. A mutual friend had been trying to set up a meeting between them, but it just
never worked out. Then one evening, just by chance, they all
ran into each other! He and his wife have now been married
seven years and have two preschool boys. His wife previ-
ously was the Director for Revenue for Marriott. However,
she retired when they decided to start a family and is now
a full-time mother and homemaker. When asked about his
good luck in meeting Pat and Barbara of the conflict panel in
an Indio courtroom and meeting his future wife by chance,
Commissioner Koosed chalked it up to kismet. Commissioner Koosed enjoys golfing and spending time with his family. His sons love computer games and wrestling.
He and his wife love to travel and hope to do some more
extensive traveling once their boys are older. Since becoming
a commissioner on June 22, 2005, Commissioner Koosed has
been doing a lot of traveling on the Interstate 10, in that he
commutes to Riverside from Indian Wells each day. Commissioner Koosed loved trials, but trial work required a lot of long hours, and that he does not miss. He does miss
his fellow Indio conflict panel attorneys, though. Not only
did they have lunch together every day and provide a lot of
support, they are very good friends. As a trial attorney, one
of his greatest successes was a recent trial in February 2005,
in which he obtained a full acquittal for his client, Richard
Walker, in a death penalty case. Since Commissioner Koosed had practiced primarily criminal law, he said he had a lot to learn in his first assign-
ment as a commissioner, which is unlawful detainers and
small claims. However, he is enjoying the assignment and
the camaraderie of the civil judges and commissioners. Commissioner Charles Koosed Riverside Lawyer, January 2006 V ictor Marshall was inspired to become an attor-
ney by another attorney and
another Marshall Thurgood.
In fact, it was Thurgood Marshall
School of Law in Houston that
gave Victor his law degree.
Born, raised, and educated in
Chicago, he was drawn to the
law at an early age as a means of redressing social injus-
tice. Consequently, Victor received his practical training
in the San Bernardino Public Defenders Office, where he
tried more cases than any other lawyer while employed
there, and at the district attorneys office, before coming
to Riverside, where he set up shop as a criminal defense
attorney about seven years ago. In the eleven years that
he has practiced law, Victor has found time to skydive,
hang glide, ski, golf, jog, play basketball, enter bodybuild-
ing competitions, and is a husband and father of three
children. Victors community activities include volunteering with the Inland Empire Latino Lawyers Association and
the San Bernardino Chapter of the NAACP. He received
a special commendation from Mayor Loveridge for excep-
tional work as one of the first lawyers in Volunteers in
Parole and has also aided the indigent at Inland Counties
Legal Services. Prior to that, he worked for legal aid in
Los Angeles. Victor had the privilege of giving a televised
public speech by the statue of Dr. Martin Luther King,
Jr. here in Riverside. He also has the honor of being an
adjunct professor at Loma Linda University. Victors practice is based at his office on Magnolia Avenue overlooking White Park (the occasional free con-
cert is one of the parks perks). Apart from Thurgood
Marshalls inspiring example, it was Victors uncle, Ehalid
Dinkane, who encouraged him to dive into jurisprudence,
but it was the campus unrest at Victors alma mater
Eastern Illinois University that made him want to speak
out against discrimination. The best avenue for that
was criminal law. It has been an education. Ive never
learned more than from practicing law, observed Victor.
The beauty of trying cases with D.A.s is developing a
trust relationship that allows you to resolve issues outside
the courtroom. o PPosing C ounsel : V iCtor M arshall Sitting as a judge pro tem has given him enhanced empathy with the judges before whom he appears. Most
of Victors courtroom experiences have been positive
ones: For the most part, judges have been good to work
with. Victor also appreciates the collegiality that he
enjoys with prosecutors, though professional camaraderie
is, occasionally, tested by irony. In one instance, Victor
had to put one district attorney on the stand to destroy
another district attorneys case: the first D.A. testified
that the victim allegedly assaulted by Victors client had,
in fact, no bruises, much to the dismay of the second D.A.
Nevertheless, the incident made for a good story to tell at
social gatherings. With respect to trial work, Victor learned from the best, including Gerry Spence's Trial Lawyers College and
the National Criminal Defense College. He credits most
of his training to his mentor, Grover Porter. Despite his easy-going approach to life, Victor is con- cerned about the high mortality rate among attorneys.
However, Victor, anything but sedentary at age forty,
should have the luxury of deferring such concerns for
quite a few years. Victor Marshall Riverside Lawyer, January 2006 Let No Guilty Man Escape
The Judicial Biography of Hanging Judge Isaac C.
Parker
By Roger H. Tuller
University of Oklahoma Press (April 2001), 210 pp.
ISBN 0-8061-3306-6 In the old Wild West, he was responsible for the deaths of more men and women than Billy the Kid, Jesse James,
John Wesley Hardin, Wyatt Earp, or Wild Bill Hickok. Yet
he never shot, stabbed or bludgeoned anyone to death. His
method of execution was the rope. His name was Isaac
Charles Parker, but he was more commonly known as the
original Hanging Judge. Parker was born on October 15, 1938, and he died (of dropsy) on November 17, 1886. In between his birth and
death, he was responsible for sentencing 161 convicted
criminals to their deaths. Of that number, 79 were actu-
ally hanged. This excellent biography of Isaac Parker was written by Roger Tuller, who is an instructor of history at SUNY
College in Cortland, New York. Tuller presents an inter-
esting account of Parkers rise to become the law of the
land as U.S. District Judge for the Western District of
Arkansas, located in Fort Smith. Although he grew up on a farm, Parker disliked hard labor, and instead developed an interest in books, history,
and literature. At age 17, he decided to pursue a career in
law, which was a logical choice, given his interests. Back
in Parkers time, there were only 13 law schools in the
country, and many attorneys did not attend a formal law
school. Legal training often consisted of a combination
of apprenticeship and self-directed study of legal clas-
sics such as Greenleaf on Evidence and Blackstones
Commentaries on the Laws of England. Tuller mentions
that passing a formal bar examination, as we know it today,
often was not a requirement. He describes one incident in
which an Ohio jurist, after a cursory five-minute examina-
tion of a successful candidate, exclaimed Oh, hell, that
fellow can take care of himself. Lets go get liquor. Parker passed his examination in 1859 at age 21. His early career included a position, starting in 1861,
as City Attorney for St. Joseph, Missouri. His duties
included prosecution of violators of local ordinances. In
one instance, he was involved in obtaining a conviction of Joseph Robideaux the founder of St. Joe for public
drunkenness. He first became a judge in 1868, when he won a six- year term on the Twelfth Missouri Circuit. In March of
1875, he was appointed by President Ulysses S. Grant to
preside over the Western District of Arkansas. Prior to this
appointment, the Western District had been subject to cor-
ruption and malfeasance by Parkers predecessor (William
Story). Court sessions were rarely held and punishment
of law-breakers was virtually nonexistent. Parkers regime
brought about an almost immediate change when, on
September 7, 1875, six convicted murders were lined up
on the gallows. With 5,000 spectators looking on, Parkers
executioner George Maledon moved to the left of the plat-
form, grasped a lever and opened the trap. It was now
clear that Parker, unlike his corrupt and lenient predeces-
sor, had no qualms about punishing criminals. This execution and the ones that followed over the next 20 years firmly established Parkers lasting image as
the Hanging Judge. The Fort Smith gallows could han-
dle up to 12 people at one time. During a time when most
hangings were carried out behind closed walls, Parkers
hangings were public displays, which became mass out-
ings for families living as far as 50 miles away. Although
a solemn occasion, these hangings provided a picnic-like
atmosphere and presented an opportunity for frontier set-
tlers who were separated by many miles to get together.
Whiskey vendors and other hawkers circulated through-
out the crowd. News of the hangings was published in
newspapers across the country. It should be noted that the Western District covered 74,000 square miles, sprawling across 18 counties and the
entire Indian Territory (which included the Five Civilized
Tribes: the Choctaw, Chickasaw, Cherokee, Creek, and
Seminole). Indian courts governed their own people and
Parkers court handled cases involving U.S. citizens and
disputes between the tribes. The rugged territory was a
haven for criminals. Federal statutes were upheld by a
small force of federal marshals. To illustrate the danger
presented to these marshals in covering this territory,
statistics reveal that at least 20 deputy marshals were
killed there between 1881 and 1886. It was for this reason,
among others, that Parker felt the need to establish law
and order in this wild territory. B ooK r eView by Bruce E. Todd (continued on page 17) Riverside Lawyer, January 2006 T he purpose of this article is to acquaint attor- neys with actions against skilled nursing facilities for
neglect and abuse of their patients or residents. For
purposes of this article, a skilled nursing facility or con-
valescent hospital is one that provides 24-hour skilled
nursing care, unlike a residential care facility, which pro-
vides basic care to independent elders who do not require
medical care. The legislature has provided enhanced remedies on tort claims against nursing homes to motivate plaintiff
attorneys to represent the elderly. Prior to the legislative
enactments, it was difficult for the elderly to obtain rep-
resentation because they did not fit the typical plaintiff
model, in which the injured party is disabled due to the
consequence of the injury, with significant lost wages or
medical expenses. Rather, the nursing home client has
pre-existing illnesses, rendering him or her frail, sick
and jobless, not to mention a poor quality of life and a
short life expectancy. Nevertheless, recent changes in
the law have made this type of litigation worth pursuing,
considering that the 65-year-plus and subset 85-year-plus
population are both growing rapidly in the United States.
Also, a substantial percentage of California nursing homes
have been cited continuously for very serious quality-of-
care problems or substandard care. Litigating nursing home cases is similar to litigat- ing other personal injury cases in some respects, yet
critically different in many ways. Nursing home cases
are governed by Welfare and Institutions Code, section
15600 et seq. (hereinafter referred to as the Elder Abuse
Act), and are completely different from cases concerning
the medical negligence of physicians and hospitals, com-
monly referred to as medical malpractice cases, which are
governed by MICRA legislation. The Elder Abuse Act was
enacted to protect the elderly and dependent adults from
abuse and neglect. The legislature determined that the
elderly have special needs and are very vulnerable to the
risk of abuse, neglect and abandonment. These statutes
create civil remedies against individuals and entities that
commit elder abuse. Generally, elder abuse is defined as [p]hysical abuse, neglect, financial abuse, abandonment, isolation, or other
treatment with resulting physical harm or pain or mental suffering. (Welf. & Inst. Code,
