Blog : Minami Tamaki Newsletter Fall 2009

We just sent out our latest newsletter from Minami Tamaki LLP. And you may notice how short it is. The printed newsletter we just mailed out contains only abbreviated versions of articles. The full versions are available here on mtdocket.com. We’re trying to move most of our communication with you to email newsletters. This will save both printed paper and costs.

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Each of the five partners and a senior counsel at Minami Tamaki LLP have been named by Northern California Super Lawyers magazine as among the top attorneys for 2009 for the sixth straight year. Only five percent of the lawyers in the California are named by Super Lawyers.

Dale Minami (Personal Injury), Donald K. Tamaki (Corporate), Brad Yamauchi (Employment), Minette A. Kwok (Immigration), Jack W. Lee (Employment), and Lynda Won-Chung (Immigration) were selected based on voting conducted by ballots sent to more than 56,000 lawyers in the region, an extensive process involving peer nomination and a blue ribbon panel comprised of lawyers from appropriate practice areas who scrutinized the list of nominees.

Minami was also selected as one of the Top 100 Northern California Super Lawyers for the fourth year (2005, 2007, 2008 and 2009).

Northern California Super Lawyers is published annually in August in a special advertising section in San Francisco Magazine, which reaches more than 400,000 monthly readers. Northern California Super Lawyers magazine, featuring articles about the local legal community, is delivered to more than 64,000 readers, including Northern California lawyers, the lead corporate counsel of the Russell 3000 companies and the ABA-approved law school libraries.

The selections for Super Lawyers are made by Law & Politics, a division of Key Professional Media, Inc. of Minneapolis, Minn. Each year, Law & Politics undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the Law & Politics’ attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check.

The Asian Law Caucus officially launched the Fred T. Korematsu Institute for Civil Rights and Education at the organization’s annual event on April 30 in San Francisco. Minami Tamaki LLP was a sponsor of the event.

“The Institute will play a role in a new era of collaborative efforts to further secure the rights of all people of color,” said Karen Korematsu-Haigh, Korematsu’s daughter. “We want to develop and support a new generation of ambassadors of justice that embody my father’s courage and conviction.”

The Korematsu Institute will advance the cause of Asian American civil rights and human rights through pan-Asian American alliances and programs that focus on education, activism and leadership.

“Fred Korematsu’s eventual court victory taught America about the fragility of civil rights especially during times of international tensions,” said partner Don Tamaki a member of Korematsu’s legal team. “It reinforced our belief that civil rights must be fought for and are not simply guaranteed by the courts or by any governmental institution.”

The April event honored the Korematsu coram nobis legal team, including Lorraine Bannai, Marjie Barrows, Dennis Hayashi, Aiko Herzig-Yoshinaga, Peter Irons, Karen Kai, Donna Komure, MT partner Dale Minami, Leigh-Ann Miyasato, Robert Rusky, Tamaki, Akira Togasaki and Eric Yamamoto. Other honorees included the Akonadi Foundation and its founders Quinn Delaney and Wayne Jordan; and Jason Lee, Holly Tate, Christopher Watson and Gavin Masuda of Latham & Watkins LLP.

“In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls … Plessy, Brown, Parks. To that distinguished list, today we add the name of Fred Korematsu,” said President Bill Clinton in January 1998 in awarding Korematsu the Presidential Medal of Freedom.

During World War II, Korematsu was a 22-year-old welder in Oakland, Calif., who defied military orders that ultimately led to the internment of 110,000 Japanese Americans, including Korematsu and his family who were removed from their homes, held first in the Tanforan Race Track Assembly Center in San Bruno, Calif., and then incarcerated in the Topaz internment camp in Utah.

He took his challenge to the military orders to the U.S. Supreme Court, which, in 1944, upheld his conviction on the ground that the removal of Japanese Americans was justified by “military necessity.” That decision has been widely condemned as one of the darkest chapters in American legal history.

After four decades of having to live with a “disloyalty” conviction on his record that limited him from securing full-time work, Korematsu filed suit to reopen his case on proof that the government, when arguing his case during the war, had suppressed, altered, and destroyed material evidence that contradicted the government’s claim of military necessity.

In 1984 – 25 years ago – the Federal District Court for the Northern District of California granted his petition for a writ of coram nobis (a notice of error) and vacated his conviction.

Korematsu went on to champion the cause of civil liberties, not only seeking redress for Japanese Americans who were wrongfully interned, but also traveling the country to advocate for the civil rights of other victims of excessive government action, especially after 9/11.

Korematsu passed away in March 2005 at the age of 86.

Korematsu’s case remains a testament to the importance of preventing the erosion of civil liberties in the cause of national security.

“Fred Korematsu stood up not only for his own civil rights, but for all Americans and demanded that all Americans be protected by the inalienable rights set forth in our Constitution,” said Titi Liu, executive director of the Asian Law Caucus, the nation’s oldest legal and civil rights organization serving low-income Asian Pacific American communities.

In a post-9/11 nation where national security policies are based on fear and prejudice, the Institute is dedicated to impacting the national discourse on national security policies by building alliances that foster understanding among different minority communities whose rights have been threatened by religious and racial profiling.

Federal Transit Administration data reveal that mile for mile, cable cars get in the most accidents and cause the most injuries of any form of public transportation in the country.

In April 2009, Minami Tamaki LLP senior counsel B. Mark Fong settled a wrongful death case for $500,000 brought by the children of Joyce Wong Lam, a 76-year-old retired seamstress who was killed by a cable car in January 2006 as she walked across the street near her home in North Beach.

Like many seniors, Lam had diminished sight and hearing. Before crossing, she looked both ways, saw no vehicles approaching, and began to cross the street in the crosswalk. But since Mason Street is on a hill at this intersection, pedestrians cannot see vehicles coming up the hill, because they are below the crest.

Eyewitnesses aboard the cable car observed Lam walking slowly, looking down at the cable car tracks, obviously unaware of the cable car as it approached. The witnesses screamed at the gripman to stop, but the cable car struck Lam.

At his deposition, the gripman testified he knew many seniors lived in this neighborhood. He was trained to follow the “Smith System Five Keys of Defensive Driving,” which, among other things, required him to keep a lookout for potential obstacles a block ahead of him and be prepared to stop short of them. He was trained to expect pedestrians to be careless and do the wrong thing, and to anticipate the need to stop to avoid hitting them. Despite his training, he claimed not to have seen Lam at any time before he hit her.

Plaintiffs relied on the legal doctrine “to look is to see,” which is that when the operator of a vehicle fails to see that which is clearly visible and would have been seen by one exercising ordinary care, and a collision occurs as a result, he is negligent as a matter of law.

Lam was the matriarch of a family of five children, one of whom is a sitting San Francisco Superior Court judge. As a result of publicity from this case and pressure from the community, stop signals have been installed on all four corners of the intersection where Lam was struck.

Minami Tamaki LLP associate Seth Rosenberg and partner Dale Minami were able to help the victim of a drunk driver and also expose systematic malfeasance and negligence by one of the largest liquor distributors in the country.

On the evening of August 30, 2006, Mr. Smith (not his real name, which is being kept confidential) was driving home on Niles Canyon Road in Alameda. Keith Patrick Sweeney was driving in the opposite direction with a blood alcohol content of .23 – almost three times the legal limit.

Sweeney crashed his car head-on into Smith’s car, catastrophically injuring Smith, who barely survived the accident and will be disabled for the rest of his life. Sweeney’s automobile insurance liability limits were only $100,000, which covered just a fraction of Smith’s medical bills.

Rosenberg, MT’s lead attorney for Smith, discovered in litigation that Sweeney was a salesman for Young’s Market Company (YMC), one of the largest liquor distributors in the country.

As part of Sweeney’s job, he drove to YMC’s customers off-site (large retail beverage stores), sampled wine with these clients, and then drove to other customers to sample wine.

YMC had almost no policies or procedures to prevent its salespeople from driving while inebriated. The company also knew that salespeople would, at times, become inebriated on the job.

Rosenberg also discovered that YMC knew before hiring Sweeney that he had a prior DUI conviction, but hired him anyway. YMC’s Human Resources Department also did not notify Sweeney’s supervisors about his prior DUI, even though one of Sweeney’s supervisors testified that such information would be relevant to his training and supervision of Sweeney.

Even worse, for a year leading up to the accident, Sweeney admitted to drinking YMC’s alcohol samples of scotch until he passed out almost every night. YMC did not have policies and procedures in place to detect Sweeney’s yearlong drinking misconduct.

As the evidence of YMC’s negligent hiring, training, supervision and evaluation of Sweeney kept mounting throughout the litigation, YMC eventually settled with the victim Smith and his wife for $1,000,000. Sweeney contributed another $100,000 for a total settlement of $1,100,000.

Rosenberg and the MT personal injury group are proud that they were able to help the Smith family financially and bring to light YMC’s negligent conduct, which greatly contributed to this unnecessary incident.

Minami Tamaki LLP recently settled a wrongful death claim for the family of Kenji Suzuki, a former Marine who died from injuries after being run over by a MUNI bus near Japantown.

On January 11, 2007, Suzuki was walking in a crosswalk while the light was green at the intersection of Geary Boulevard and Fillmore Street when he was struck and run over by a MUNI bus whose driver ran the red light.

Suzuki suffered major injuries and died five days later at San Francisco General Hospital at the age of 69. Suzuki’s mother, 94-year-old Masako Suzuki, lost her primary caregiver. “Kenji was a wonderful son and did so much for our mom,” said sister Helen Sato of San Francisco.

MT partner Dale Minami represented the family and noted that Suzuki’s accident was part of an unfortunate pattern of pedestrian deaths and injuries in Japantown.

“There are just too many incidents of pedestrians with the right-of-way being hit by vehicles,” said Minami, who has handled a large number of similar cases. “Many senior citizens may believe that drivers will stop for them at the red light but too many drivers are simply not paying attention or are speeding.”

The family and MT donated part of the settlement to create a website, JapantownSafety.com, and a pedestrian safety brochure about traffic and pedestrian safety awareness that was circulated to Japantown residents and visitors. The information brochure was also translated into Japanese. Sato hopes her family’s loss does not happen to any other people.

“Our family will always have to live with the pain of Kenji’s tragic accident,” said Sato. “The best thing we can hope to do now, in Kenji’s memory, is to get the word out to others that pedestrians and drivers need to be more careful. Pedestrians should never just assume that drivers will stop, even if the pedestrians are walking in a crosswalk with a green light.”

A 68-year-old retired cook (client’s name withheld) was walking across Ellis Street in San Francisco in the crosswalk on a green light when a Luxor cab struck her as it turned into the intersection. The impact slammed her to the pavement, causing her head to strike the ground with great force.

She was taken to San Francisco General Hospital, eventually released to Laguna Honda, and then to her home. Before the accident, the client was living independently in her own apartment, cared for her grandchildren and was very energetic and engaged in her church and choir.

After the accident her behavior and mental state changed dramatically. Her children noticed difficulty with her motor coordination and a change in her emotional state, and took her to University of California San Francisco Medical Center, where doctors found fluid building up pressure in her brain, which accounted for her problems.

MT’s Personal Injury team, led by partner Dale Minami, filed a lawsuit and, after they produced evidence of the physical, mental and emotional changes caused by the accident, and the client’s lifetime care needs, defendants agreed to mediate.

After a lengthy mediation, defendants finally agreed to pay the policy limits of $1 million dollars which will be used to provide home care, future medical care and compensate the client for her pain and suffering.

Traumatic Brain Injury, such as that suffered by the client, often produces subtle changes in a person and may not appear until much later after a traumatic event. The recent highly publicized case of Natasha Richardson, the actress who hit her head skiing, is a dramatic example of the dangers of this disorder: she showed no symptoms at first, but later died suddenly of bleeding in her brain.

MT’s client was fortunate to have her children recognize her problems and obtain treatment for her. She has improved greatly and is trying to regain her independence with the compensation she received in her settlement.

In his capacity as chair of Senator Barbara Boxer’s Judicial Selection Commission, partner Jack Lee participated in a panel on “How Do You Become A Federal Judge? Demystifying the Nominating Process for Federal Judicial Appointments” on May 26 at the Santa Clara County Bar Association.

The panel was part of a workshop presented in response to the likely vacancies of Northern California federal district court judgeships expected over the next year or two due to retirements and the addition of several new judicial positions.

Participants learned about preparing for and applying for a Federal judicial appointment in California and how the nominating process works. In addition to Lee, the panel included: Hon. Jeremy D. Fogel (Judge, U.S. District Court for the Northern District of California), Louise Renne (Chair, Senator Dianne Feinstein’s Judicial Advisory Committee) and moderator Kathryn J. Fritz (Managing Partner of Fenwick & West).

From the 2009 edition of “Who’s Who Legal: California”: “The ‘highly capable’ Lynda Won-Chung at Minami Tamaki LLP attracted a great deal of praise. Won-Chung manages the firm’s South Bay office and focuses on work for hi-tech clients as well as representing start-up companies. Joining her is partner Minette Kwok who represents IT, finance, engineering and manufacturing industries, as well as non-profit organizations.”

MT associate Bethany Caracuzzo and Charles C. Kelly II, a partner at the law offices of Hersh & Hersh in San Francisco, authored an article in the May 2009 issue of Plaintiff Magazine, “Attacking the token 998 offer,” in which the authors argue that token offers violate the policy behind Section 998, are therefore void and do not entitle defendants to expert costs. (Read the full article here.)

MT was featured prominently in an article in the May 2009 issue of California Lawyer magazine titled “Making Rain in a Drought,” reporting that despite the recession, small and midsize firms are thriving by making the most of their modest scale and flexibility.

The City of Arcata in February filed a federal lawsuit against the United States government and the U.S. Department of Defense to defend a voter-approved referendum protecting minors against abusive military recruiting.

Minami Tamaki LLP partner Brad Yamauchi and the Law Offices of Michael S. Sorgen, representing the City of Arcata pro bono, asked the federal courts to uphold the Youth Protection Act and issue an injunction prohibiting military recruiters from recruiting children under the age of 17.

Arcata, a California coastal city near Eureka, Calif., and 279 miles north of San Francisco, was forced to file the lawsuit to ensure that the city’s Arcata Youth Protection Act would not be nullified by a lawsuit filed in Dec. 2008 by the U.S. Department of Justice.

The Arcata Youth Protection Act is intended to protect minors in Arcata from overly aggressive and abusive military recruiting tactics by prohibiting any person from initiating contact with a minor in Arcata for the purpose of military recruitment. It does not prevent minors from initiating contact with military recruiters. The Act was passed by 73 percent of Arcata voters last November.

The injunction specifically cites the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, which was adopted by the U.S. Senate in Dec. 2002, and prohibits the U.S. government from recruiting minors into the military.

“The Protocol is an international treaty which was adopted by the U.S. Senate, and as such, is the law of the land as provided for in the U.S. Constitution,” said Yamauchi.

“The citizens of Arcata fully support and greatly respect the men and women who have chosen to put themselves in harms way by serving in our military forces, but they also firmly believe that they have the fundamental right to protect their children from abusive and misleading recruiting tactics,” Yamauchi added.

The pro bono legal representation of Arcata in the lawsuit is especially critical, given the city’s small size of approximately 17,000 residents and the city government’s extremely limited financial resources.

Yamauchi is a former Assistant Regional Civil Rights Attorney in the U.S. Department of Health and Human Services and a former staff attorney for the Santa Clara County Human Relations Commission in San Jose, Calif.

A federal judge in June ruled in favor of the government against the cities, but the government and Eureka and Arcata have all decided to pursue appeals.