In most unlawful arrest or imprisonment cases, private security is involved. While the law in California allows for any private person to make a "citizen's arrest", there are restrictions and limited authority to do so. Compared to a police officer, a security officer has far less authority in detaining individuals. When a person has been detained or arrested unlawfully, that person becomes a victim and has a right to be compensated for any physical harm or emotional upset that results.

To protect their property and maintain business peace, most retailers and large property owners hire guard and agents. These are generally uniformed guards from a security service patrolling the location. Their primary function is to ensure certain rules are obeyed (relative to parking and other activities), and they rarely have the chance to capture suspected law violators. When guards detain or arrest a person, they are taking a chance of violating that individual's right to be free of unlawful imprisonment. For instance, if someone is detained by a guard for breaking into a car, which happens to be that individuals own car, that person has the right for compensation for any unlawful use of force in the arrest. In the worst case scenario, a guard can use his weapon and hurt someone that he wrongly believes committed a crime. For this situation, there may be some liability issues for substantial damages and injuries, and the employer and guard may be legally responsible.

Agents in retail security and loss prevention probably come into contact with more suspected law violators than others in the field of private law enforcement. It is not unusual for an "undercover" shoplift agent to catch an alleged shoplifter and follow through with criminal prosecution. If the agent is not reasonably sure that the shoplifter really stole something from a shop, compensation may be given to the victim for emotional and physical harm that he suffered. It is possible for the agent to be immune from liability if there is "probable cause" to believe the suspect did in fact take or attempted to take store merchandise unlawfully. This is called "merchant's privilege" and, although not absolute, it can be called into play to protect a retailer in the even of a lawsuit.

Not only may the retailers and property owners be held responsible for false arrest and imprisonment, they may also be held liable for malicious prosecution of a criminal case if the accused is found not guilty in the end. Sometimes, an inexperienced or overzealous guard or agent will unlawfully apprehend or arrest an individual and then add to the trouble by insisting on a criminal prosecution. If the case goes to court resulting in an acquittal, the falsely accused person has a right to be compensated for the initial detention and arrest, as well as the criminal prosecution. They will not impose liability on the guard or agent until it can be proven that said guard was not acting with probable cause. Because most private law enforcement employees do not have the same training or education as police officers, it is common for these errors to occur.

There is an endless amount of harm that can be caused if someone is falsely arrested or imprisoned. A trial lawyer with experience will assist you in sorting through the truths and the legal system to achieve a fair outcome.

By: Paul W Ralph
As an Orange County Personal Injury Attorneys, Paul W. Ralph has seen his fair share of false imprisonment cases. From wrongful arrest to improper detainment, Mr. Ralph knows that sometimes mistakes are made and the arresting party needs to be held responsible. That's why, as an Orange County false arrest lawyer, he works hard to see the victims compensated.

In recent weeks, the subject of employee tipping has received considerable attention in the media. There have been lawsuits in California, Massachusetts, and other states which should serve to remind employers about the importance of knowing and then following State and Federal laws on tipping.

In California, there are three critical rules which must be followed by employers:

1. No manager may take any portion of a tip left for an employee;
2. An employer may not offset any credit card processing fee against a tip left by a customer for an employee; and
3. Absolutely no portion of any tip received by any employee may be offset against the minimum wage of $8.00 per hour paid to an employee.

It is worth noting, however, that in California, a service charge by the business owner is not considered a tip for purposes of the California Labor Code provisions dealing with tipping.

There is still some controversy in California concerning the subject of tip pooling. Tip pooling is not automatically illegal in California. The controversy arises over what type of tip pooling arrangement is allowed.

The California Division of Labor Standards Enforcement has traditionally took the strict view that in order for an employee to participate in the tip pool, he or she must render direct table service. Such a rule is both artificial and unworkable.

Take for example, the customer who orders a drink from his table. Should it make a difference in any tip pooling arrangement whether the bartender brings the drink to the table or whether the server delivers the drink?

Another example - in those restaurants where the cooking of the food is in plain view of the customers, should the cooks be prohibited from having even a small percentage of the tip?

Finally, if the dishes on which the food is served are not clean, then the customer will not enjoy the dining experience. Thus, should the dishwasher receive a tiny percentage from the tip pool?

In recent years, the Courts, especially the Federal Courts have rejected the artificial "direct table service" distinction. Rather these decisions leave it to the restaurateur to adopt a tip pooling plan. So long as that tip pooling plan is reasonable, it is likely to be upheld by the Courts. Obviously, the server should get the lion's share of any tip, with smaller percentages going to those who participate in the dining experience.

Given the attention that tipping and tip pooling has received in recent weeks, this is a good time for all employers to review their tipping and tip pooling practices to ensure that such practices are consistent with both State and Federal law.

By: Russell Thomas
Attorney at Law
THOMAS & ASSOCIATES
4121 Westerly Place, Suite 101
Newport Beach, California 92660
Tel: (949) 752-0101
Fax: (949) 257-4756
Email: rthomas@rjtlawfirm.com
Web: http://www.rjtlawfirm.com

J.D., Harvard Law School, 1967

Specializes in Employment Law and Litigation;Offices in Southern California (Los Angeles and Orange County)

Sometimes, one of the key pieces of evidence in your case is a hearsay statement. Maybe it's an admission from the defendant or from the defendant's agent. It might be testimony from another trial or hearing that squarely addresses an issue in your case. Whatever the situation, if you need to offer an out-of-court statement into evidence for the truth of the matter asserted in the statement itself, you have a problem on your hands.

But like getting a flat tire in the rain, it might not be in insurmountable problem. It is, however, a problem nonetheless, which means you need to plan your solution early enough to implement it. So when planning your case in chief, consider whether you might benefit from the spontaneous-statements hearsay exception. Let me give you an example.

The first case I ever tried to a jury was actually decided on a spontaneous statement of an unavailable hearsay declarant. I won that trial because I recognized my hearsay problem early enough to successfully implement my solution.

I was prosecuting a misdemeanor domestic-violence case. The defendant was a six foot five inch tall, 275 pound bruiser. The victim was his five foot tall, 90 pound wife. They were camping at the San Elijo Beach campground, and he cold-cocked her with a closed fist right cross straight to her eye socket, producing a conspicuous shiner.

The next morning, a park ranger came up to the couple. When he noticed the wife's shiner, he asked her: "What happened?" Suddenly, she became visibly upset as though she were re-living the prior night's events. Tears welled up in her eyes. Then, she pointed to her husband and dramatically blurted out: "He hit me!"

One of the social realities of trying domestic-violence cases is that the victims find themselves in a vicious conflict of interests. On the one hand, they want their abusers to be incarcerated so that they are free from the physical abuse. But on the other hand, they may be financially dependent on their abusers, and incarceration would therefore be extremely inconvenient for the household. They also fear retaliation. This leads to a phenomenon commonly known as "the recanting witness" or "the recalcitrant" or "absentee victim."

Naturally, by the time the trial came around, the wife was "unavailable." She ducked my subpoenas, slipped into the network of battered women and homeless shelters, and was gone. That meant that my star witness would be the park ranger who had to testify about what she said, which was plainly hearsay.

Enter the spontaneous statement - also known as the exited utterance.

Evidence Code §1240 states that a statement is not inadmissible hearsay if it "purports to narrate, describe, or explain an act, condition, or event perceived" and was made "spontaneously while the declarant was under the stress of excitement caused by such perception."

Case law states that for the exception to apply, there must be (1) an occurrence sufficiently startling to produce "nervous excitement and render the utterance spontaneous and unreflecting;" (2) the utterance must have been made before there was time to "contrive and misrepresent," i.e., while the nervous excitement still dominated the reflective powers; and (3) "the utterance must relate to the circumstances of the occurrence causing it." People v. Poggi (1988) 45 Cal.3d 306, 318. The idea is that statements made in the heat of the moment are less likely to be false.

The admissibility of spontaneous statements is a matter within the discretion of the trial court. People v. Pearch (1991) 229 Cal.App. 3d 1282, 1290. Often, the main issue - as it was in my domestic-violence case - is a lapse in time between the event and the statement. But the key is that the statement must be made under the stress and excitement of the event "while the reflective powers were still in abeyance." People v. Washington (1969) 71 Cal.2d 1170, 1176.

For example, the statements in Washington were made an hour after the event, but were nevertheless admissible. See also, People v. Raley (1992) 2 Cal.4th 870, 893 (18-hour gap in time); and In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 (2-day gap in time). However in one case, the court found that 13 hours between the startling event and the statement was too long for the exception to apply. Pearch, supra, 229 Cal.App.3d at 1290.

There is no bright-line rule about the timing of the event and the utterance. The distinction seems to be whether the declarant was still under the stress of the event. In my domestic-violence case, for example, the court was persuaded that the victim was under the stress of the battery because she welled up and seemed to be re-living the attack when she identified her husband as the attacker. He was also standing right behind her when the park ranger asked her "what happened?"

The spontaneous-utterance exception is not limited to verbal testimony. Affidavits or declarations can also contain hearsay made admissible by the exception. Mecchi v. Picchi (1966) 245 Cal.Ap.2d 470.

If you plan to introduce a spontaneous utterance at trial, be sure to have all necessary witnesses to lay your foundation. For example, be sure to call the person who heard the statement. Also, be sure to call the person who can testify as to the declarant's state of mind, i.e., that the declarant was excited and under the stress of the event.

Finally, be sure to consider all other possible exceptions such as contemporaneous statements (Evid. Code §1241); statements relating to the infliction or threat of physical injury (Evid. Code §1370); statements by an elder or dependent-adult victim of abuse (Evid. Code §1380); admissions (Evid. Code §1220); dying declarations (Evid. Code §1242); statements of state of mind, emotion or physical sensation (Evid. Code §1250); declaration against interest (Evid. Code §1230); or prior inconsistent statements (Evid. Code §1235).

If you know that your case depends on a spontaneous statement - or any hearsay exception for that matter - plan early. Try to obtain your opponent's stipulation as to admissibility, or else subpoena all foundational witnesses, request an Evidence Code §402 hearing and/or file motions in limine as necessary. Whatever the case, be proactive in getting your evidence admitted, especially if you can foresee an objection.

By: Gordon L Levinson
Gordon Levinson has successfully represented hundreds of cases in California. A graduate of University of San Francisco School of Law, Gordon now uses his insurance-defense experience representing injured plaintiffs.

For more information, contact the Levinson Law Group at 1-866-643-HURT (4878), or at http://www.LevinsonLawGroup.com

Okay, so you've just become a victim of one of the 3 million car crashes that occur each year in the U.S. This article is going to assume that you were an innocent victim and that another party was at fault. What you do immediately after the collision will have lasting effects on the outcome of your situation.

In a perfect world where everyone is fair and all parties take responsibility for their actions and abide by their agreements, an accident is pretty straight forward: You get hit, the other party gives you their insurance information, you call them, they arrange to repair your vehicle and they offer to pay your medical expenses, any lost time from work and a sum for the time you had to endure pain and were unable to enjoy your life in a normal fashion.

The problem is, it's far from a perfect world. People and insurance corporations do not take personal responsibility and do not uphold their agreements. Therefore, you must take charge and not assume everyone is going to do their share.

What to do immediately after the collision: Take inventory of your body and your passenger's well-being. If anyone is bleeding, have them apply pressure to the wound. If anyone is unconscious, do not move them. Check for pulses and breathing. Immediately call 911. Administer emergency care like CPR if needed. If you have an unconscious passenger, or one that is severely injured or if you are severely injured, try to remain calm until help arrives. Do not move the vehicle or the injured party unless there are signs of a fire or other imminent danger.

If no life threatening or severe injuries have occurred, move your vehicle to the side of the road and out of traffic. It does absolutely no good to get out of your vehicle and inspect damage in traffic lanes. It only causes traffic congestion and other secondary accidents. It won't make any difference legally if all the cars are lined up or not. Just make sure to note which cars were where and the sequence the collision occurred in. Call 911 and report the accident and ask for local police (for surface streets) or Highway patrol (freeways and toll roads) to respond. Many local police agencies will not write a report on scene unless there are injuries, severe vehicle damage or you are blocking traffic because your vehicle won't move.

Once the authorities have been notified, go out and exchange information with the other parties involved. Take a piece of paper and pen with you and write down the name, phone number, make and model of vehicle, color, license plate number and insurance information. DO NOT ARGUE. Don't cause a scene at the scene. Don't insist on an apology or demand the answer to "What were you doing?! Why did you hit me?!" Dispassionately gather information. If you get upset and rant, the other party is less likely to cooperate. If your cell phone has a camera, take pictures of the other vehicle and the damage of your vehicle as they sit at the side of the road. Get photos of all vehicles involved if it is a 3 or more vehicle collision, even if the other vehicles did not hit yours. This information may be needed later to settle any disputes over liability.

Once authorities arrive at the scene, calmly and assertively explain what happened. If you or anyone else in your vehicle feels any discomfort at all, do not be brave and minimize it. Often injuries develop over the course of a few days and can even be delayed by weeks or months. If you report at the scene that you are "fine," and then a week later you awake with severe neck pain or develop a disc injury months later as the result of the crash, these words can come back to be used against you by an insurance company that doesn't want to pay your medical bills. Just tell them honestly, I have a headache, my neck is stiff or my knee hit the dash and it hurts, etc. Don't exaggerate or lie, but do not trivialize your potential injuries either. At the scene you do not know if you are injured. If another party claims incorrectly, you were at fault, do not argue with them. Instead explain your side rationally to the police at the scene. Between your calm statements, photos and the police officer's "BS" detection instincts, the truth almost always prevails.

The authorities may ask if you need an ambulance to take you to the hospital. Here are some examples of when to go to an ER room: dizziness, bleeding, cannot move neck or neck pain is significant immediately after the collision, loss of consciousness or disorientation, suspected leg or arm fractures, drowsiness or slurred speech, numbness, shooting pains or inability to move fingers, hand or arm. These are signs of possible severe injuries or spinal damage and require stabilization and evaluation by an ER physician. The vast majority of life threatening or very serious injuries will be discovered in the ER. But, ER doctors often overlook moderate whiplash and other strain type injuries, so if you are told "you're fine... you're just strained... it will go away in a few days..." that is bad medical advice.

Once all information has been exchanged and the police have taken a report, it is time to carefully leave the scene. Carefully because accidents cause other drivers on the road to seemingly lose their minds and veer right for them like bugs to a light. You don't need another collision! If the police do not respond to make a report. Drive directly to the local police station to make a traffic accident report. This is important! You must do this right way. If no objective authority files a report, it's your word against the other person's. Making a report right away gets your side of the story documented.

Whether you feel pain or not it is important to call and make an appointment with a physician specializing in automobile accident injuries. Such a professional will always make room for you within 24 hours because they understand that immediate evaluation is necessary not only medically, but to protect your legal rights as well. Your family medical doctor or chiropractor who is not specifically trained in and does not devote the majority of his or her practice time in personal injury matters, is not qualified to take care of your unique condition. Accidents are intricate and there are many bases to cover to ensure any injuries are detected, documented fully and cared for correctly. That's where a specialist can help you immensely.

Your next call is to the other persons auto insurance company. Don't put this off until tomorrow. Do it within an hour or so of the accident. Give them all your information and the information given to you by their insured. Inform them you will be seeking a medical evaluation within 24 hours. Next, call your own insurance company and let them know you have been in a collision. Give them all the other party's information.

After the dust has settled, and you've made your calls, try to relax. Take out a pad of paper and write down briefly everything that happened. In time your memory will fade and you may forget about important details. Write them down while they are fresh in your mind. Check your body for any bruising, redness or scrapes on the side of the neck, over the collar bone and chest, which often appear due to contact with your seat belt. Look for bruising on your abdomen where your lap belt is. Check arms and legs for bruises and your head for tenderness. Collisions occur so rapidly that you may not even be aware that you struck your body on the interior of the vehicle or against one of your passengers. Photograph any visible signs of injury from about 3-4 feet away.

Well that about does it. You've done all you can to properly manage the immediate aftermath of your accident. Your next steps are to report to your personal injury specialist physician for an evaluation and to continue contacting the other party's insurance company until they have made a report and given you a claim number.

References:

Gotten N: Survey of one hundred cases of whiplash injury after settlement of litigation. JAMA 162(9):865-867, 1956.

Deans GT, Magalliard JN, Kerr M, Rutherford WH: Neck sprain--a major cause of disability following car accidents. Injury 18:10-12, 1987.

Braaf MM, Rosner S: Symptomatology and treatment of injuries of the neck. NY State J Med 55:237-242, 1955.

Loro MBG-M, Yuste PG, Perez CG, Garcia MTM, Lorenzo AH. Epidemiology of traffic crashes in a general hospital. 43rd Annual Proceedings of the Association for the Advancement of Automotive Medicine. September 20-21, 1999, Barcelona, Spain, 437-438.

Richter M, Otte D, Pohlemann T, Krettek C, Blauth M. Whiplash-type neck distortion in restrained car drivers: frequency, causes and long-term results. European Spine Journal 9:109-117, 2000.

By: Dr Barry L Marks D.C.
Dr. Barry L. Marks, DC...chiropractor, author and lecturer. He is a former Associate Clinical Professor and has been in practice since 1986. He has specialized training in whiplash and brain trauma from auto accidents and vehicle crash reconstruction. His expert opinion is often sought in connection with whiplash and other injuries due to automobile collisions. You may reach Dr. Marks at his Orange, CA office at (714) 938-0575. His articles and ebooks can be found at http://www.drmarks.com and a Free Consumer's Guide, "What You Should Know If You've Been Invovled in an Auto Accident" can be found at drmarks.com/auto_accident_whiplash_treatment.html