California's Proposition 29 is Flawed....

and Set to Repeat Mistakes 

Sacramento, CA - May 17, 2012 - In California, a pending ballot measure to raise tobacco taxes is being scrutinized by citizens. The initiative, Proposition 29, proposes a $1 tax increase for cigarettes as well as tax increases for premium cigars and pipe tobaccos. 

The initiative proposes to create a committee of bureaucrats who will manage the supposed $735 million dollars a year that Prop. 29 will raise. Of that $735 million, hundreds of millions every year could go to out-of-state and for-profit corporations, while up to $125 million is earmarked to pay for salaries, buildings/real estate, and other administrative costs.

However, there is a surprising amount of discretion left to these bureaucrats and how they will spend the money. For one, none of this money will go to public schools, even though in California there is a voter-approved constitutional amendment that requires new taxes to help fund education. None of the money will go towards alleviating the state's $16 billion budget deficit, either. The research money may not even stay in California, as there is nothing that requires it to be spent in the state or even in the country.

Also, the proposition cannot be touched for 15 years. The governor and legislators are prohibited from making changes to it, even in the case of waste or mismanagement.

This proposition will potentially create a $735 million vacuum that takes money away from California citizens and redirects it at the committee's discretion. This smash-and-grab approach to taxation simply cannot be tolerated. At the end of the day it is taking money from California citizens without the requirement that it be spent in California. If the money is coming from the pockets of California citizens, it should stay in California. If this were a universal tax, it would never be allowed to be spent outside of the state.

Proposition 29 boils down to a poorly thought-out initiative that, at its core, is a fundraising project with no accountability. It will raise tobacco prices across the board and give the money to a bureaucratic council with no obligations to the state or the taxpayers. Rather, their obligations will be to their affiliated universities and for-profit partners, all lining up to get their check.

The proposition will be up for vote on June 5th. 

Using Social media to Win in Court (Part 2 of series)

Sexual Harassment Cases

Information on a social networking website can also be useful in defending sexual harassment cases. A Federal District Court case in Indiana granted the defendants access to portions of two plaintiffs’ Facebook and MySpace communications because the plaintiffs claimed they had experienced “depression and post traumatic stress” as a result of sexual harassment.  The court found that photos posted by the plaintiffs were discoverable because they might reveal the defendants emotional or mental status. 

Social networking content can also help to defend a sexual harassment case where the party who was allegedly harassed by coarse language or distasteful behavior has posted comments using the same language or photos depicting the same type of behavior that he or she has alleged were unwelcome in the lawsuit. In divorce cases, a party may be able to defeat a claim for alimony by proving through social media content that the spouse demanding alimony is cohabitating with another person. Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery and its limits. The Indiana sexual harassment case articulated limits to the discoverability of social networking communications in light of claims related to emotional and mental health. 

The court held that social networking website content is not shielded from discovery simply because it is “locked” or “private” and that social networking site content must be produced when it is relevant to a claim or defense in the case. However, the court also held that the plaintiffs’ allegations of depression, stress  disorders, and like injuries did not automatically render all social networking communications relevant. The court articulated several guidelines tailored to the specific allegations in the case. Plaintiffs’ counsel was directed to produce all content responsive to the defendants’ discovery requests that fell. Other courts have been more permissive and have not limited the scope of social networking information that must be made available to defense counsel. A trial court judge in Pennsylvania ordered a personal injury plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants and directed that counsel could have “read-only” access to the entirety of the plaintiff’s accounts. The court also ordered that the plaintiff not delete or alter existing information or posts from the accounts. There are innumerable ways that social networking content can become the key evidence that wins your case, but the strategy for obtaining the information can be a tricky process.  

In the next segment, I'll explain the process of how to gather information and make it useful to your cause.

Using Social Media to Win in Court

Today everyone is online in one way or another...especially in the "Social" sector. Facebook, Twitter, MySpace, even Linked-In. I prefer Linked-In myself. We've all heard the stories about employers checking the profiles and updates of potential employees only to find something less than stellar and not offer employment as a result, but what about in court or even in an arbitration, a simple board meeting or your old fashioned take over!

Here, I'm offering a short series on USING SOCIAL MEDIA to "WIN IN COURT" as if anyone ever really wins.

Your adversary in litigation may be posting information online that could help you win your case. Social networking websites such as Facebook, Twitter, and Myspace have exploded in popularity in the past several years. Every month Facebook users post 30 billion pieces of content such as comments, photos, videos, new stories, and web links. Ninety-five million short messages or "tweets"are posted every day on Twitter. For example: "I had such a great run this afternoon. 5 miles today. I'm going to go for 6 miles tomorrow." This tweet would be a key piece of evidence to an attorney defending a personal injury case where the plaintiff claims he can no longer run due to his injuries. There is a good chance that many of your opponents are users of social media. They may be posting information that can make your case.

Personal Injury Cases

In personal injury cases the extent or existence of a plaintiff’s injuries is often disputed. Dishonest plaintiffs may post photos or videos online that contradict their injury claims. Personal injury plaintiffs who claim they are unable to do the activities they once enjoyed may post photos or publish comments that reveal that their claims are exaggerated or simply untrue. A defense attorney who knows how to search Facebook might find photos of a plaintiff lifting his child high in the air or playing golf. Where the same plaintiff alleges that the disputed accident caused him to sustain permanent, severe back injuries, the photos may defeat or significantly diminish the value of his personal injury case. In these cases, mining social networking websites for information can take the place of hiring a private investigator investigator to conduct surveillance.In a recent Federal District Court case in California, the plaintiff claimed that after the accident at issue, his life was constantly “hell on earth.” Yet, in one MySpace comment he wrote that painting is “a frustrating activity when his arm hairs would get caught in paint.” This post was written after the accident in the present tense, leading the court to conclude that the plaintiff actually could engage in activities he claimed the accident had precluded him from doing. Painting was on the plaintiff’s list of activities that were adversely affected by the accident. The court agreed that the plaintiff incurred some general damages attributable to the accident, but found that the evidence including his online postings about painting belied his claim of constant pain and rendered his testimony regarding the extent of his pain not credible.

So be on the look out, if your taking off a sick day and posting an amazing round of golf online....you might just get FIRED....or worse, loose to your workman's comp claim....anyway be on the lookout for more in future posts, coming up.....THAT PESKY SEXUAL HARASSMENT CASE!

SPRING?!?!?

What has the season brought us? The Spring of 2012 is upon us and its time to get out and mingle and network, by this I don't mean Facebook, Twitter or any other of the many many "Social" networking sites. I mean lets get out and meet people face to face and have a real conversation, one of which we can engage in idle chat and actually see a persons facial expression, have a light meal and a cocktail or three! I started the Spring off in the traditional way, the opening of the Polo season with the Will Rogers Polo Club. May 5th, marked the opening chuckers for the 2012 Polo Season for the Club. I know, I know, I could have been at the M Resort in Las Vegas for the Cinco De Mayo festivals or even spending the night watching the "Big Fight", but that's not my style, I chose a short hop over to Beverly Hills and the Pacific Palisades to bask in the sunny skies of southern California with the ocean breeze blowing over the field while I sipped a ripe mojito and puffed on a fragrant Padron cigar. I welcome you to begin to enjoy life this SPRING!

I'm Not saying she's a Gold Digger But.....

YES, I guess I am saying she's a GOLD DIGGER!

Last May, E Jiehao, one of the former male contestants on an episode of the Chinese dating show "You Are the One" filed a lawsuit against Sun Yali, the female contestant on that episode, for "annulling their marriage agreement". His lawsuit requested that Sun return a BMW that was given to her by him for the purposes of marriage – a betrothal gift (彩礼). While Sun acknowledged that the E had paid for the vehicle, she said that they had never signed any sort of marriage contract. According to her statement, E had given her the BMW to "flaunt his wealth" and not as a "betrothal gift". For this reason, she refused to give him back the BMW. On November 16th, the "E v. Sun" trial was held at the Chaoyang courthouse in Beijing.
The plaintiff’s side of the story
During the trial, the plaintiff’s (E Jiehao) lawyer said that the two parties became acquainted during an episode of "You Are the One" that was filmed in September 2010. In October 2010, he and Sun entered into a romantic relationship and began talking about getting married. The plaintiff, intent on marrying her, gave the defendant a 4,000 RMB Sharp LCD TV and a BMW 318. The vehicle was registered under the Sun Yali’s name. The plaintiff’s lawyer also submitted two "group photographs" of the Sun Yali with the plaintiff and his parents to the court, as to confirm that she had met his parents. The plaintiff’s lawyer asserted that Sun Yali, after meeting the plaintiff’s parents and discovering his family's financial situation wasn’t as good as had been implied (by the BMW), broke up with him. The plaintiff’s lawyer withdrew the appeal for the return of the LCD TV, only requesting that Sun Yali return the BMW.
The defendant’s side of the story
Last May, after E had filed a lawsuit against her, Sun Yali posted on Weibo that she’d been "framed" – that they’d never been boyfriend and girlfriend, nor had there ever been talk of getting married. However, on November 16th, the defendant’s (Sun Yali) lawyer told a different story, admitting that the two of them had been romantically involved, that the BMW had been given to her by the plaintiff, but denying that the defendant had ever met the plaintiff’s parents or that they’d ever entered into a marriage contract. According to the defendant’s lawyer, the plaintiff had faked the group photographs. Further while the plaintiff had dated the defendant, he’d also been with other women – he was a womanizer – and after discovering this, the defendant had refused to marry him. Hearing this, the judge asked whether or not the defendant wanted to have the "fake photograph" appraised –the defendant’s lawyer declined. As both parties’ accounts were quite different, the court decided to conclude the mediation, and that the verdict would be delivered at a future date.

Was the BMW a "betrothal gift" or "flaunting wealth"?

Neither the plaintiff nor the defendant appeared at the trial. As the trial centred on whether or not the two parties had been romantically involved, the lawyers had to phone their clients multiple times to verify various information. Whether or not the

BMW had been given to the defendant by the plaintiff as a "betrothal gift" became the main point of contention. The defendant’s lawyer stated that she was financially independent, and that she hadn't forced the plaintiff to give her anything. Further, the court’s own interpretation of the phrase "betrothal gift" is limited to: "giving some form of payment [for marriage] according to a custom", but Beijing is a large city, with no "betrothal gift" custom. In fact, both parties had meet on "You Are the One", a new and very in-vogue dating show. The plaintiff didn't give the BMW to the defendant as a "betrothal gift", rather, he was "flaunting his wealth" and was being a "womanizer". After hearing this, the plaintiff’s lawyer noted that "in-vogue" and "custom" are not necessarily contradictory terms, and that the act of a man giving a woman a "betrothal gift" for marriage is a customary convention, which must not be proven.

The Verdict


On December 16th, the Chaoyang courthouse handed down the verdict that Sun Yali should return compensation for the BMW (280,000 RMB) to E Jiehao.

The court ruled that the dating show "You Are the One" itself was grounded in the concept that men and women come together looking for an ideal marriage partner. That the plaintiff and the defendant became acquainted on the set of this show – soon after becoming boyfriend and girlfriend – indicates that the two parties, at least when they first became romantically involved, did so with some intention of eventually getting married. Further, while the defendant said that she’d never met the plaintiff’s parents, the group photographs that were submitted suggested otherwise. Also, in submitted recorded telephone conversations between the defendant and her friends, she repeatedly made references to marrying the plaintiff. Therefore, it is apparent that the two parties had once shown an interest in getting married. The court holds that the plaintiff, on this basis, purchased the BMW for the defendant, and that gifts given when two people are romantically involved possess a "betrothal-like quality" (as opposed to gifts given under non-romantically involved contexts). Finally, as the BMW was already registered under the defendant’s name, and because the value of the car had already depreciated from use and time, the court ruled that Sun Yali to return a majority amount of the cost of the BMW to E Jiehao. Following the verdict, it was unclear weather or not Sun Yali would appeal the decision.

Source: ifeng, jinghua.cn

MY WAY!!!

If ever there was a man who ruled his country the way he believed in his heart of hearts it should be ruled...this was the man. He followed in his fathers footsteps and let it be known. As a man who has travelled the world, I believe that America should stay out of the business of other countries…didn’t we separate from another nation because we fealt that they were too involved….anyway you get my point. I hope the day never comes when all other nations unite and band against the USA for interfering in their business….Why don’t we just allow other nations to be themselves…if they want Democracy, they can fight for it, or separate like we did. I digress, on with the sad news of the death of a leader, a true leader!

Kim Jong Il, the second-generation North Korean leader who defied American condemnation to build nuclear weapons, has died, state media reported. A government statement called on North Koreans to “loyally follow” his son, Kim Jong Un.

Kim, 70, died on Dec. 17 of a heart attack brought on by mental and physical strain while on a domestic train trip, the official Korean Central News Agency said. Kim probably had a stroke in August 2008 and may have also contracted pancreatic cancer, according to South Korean news reports.

The son of Kim Il Sung, North Korea’s founder, Kim was a chain-smoking recluse who ruled for 17 years after coming to power in July 1994 and resisted opening up to the outside world in order to protect his regime. His little-known third son, Jong Un, is likely to succeed .

“Kim Jong Un’s taking complete control of the helm will not take place for a while due to his youth and inexperienced leadership,” said Yang Moo Jin, a professor at the University of North Korean Studies in Seoul. “The North will likely be under the control of a governing body for about a year.”

A state television announcer wept as she read the news of Kim’s death. Footage was aired of thousands of people in the main square of the capital of Pyongyang chanting in unison and waving Kimjongilia, a flower named after the deceased leader.

Jong Un, is at the “forefront of the revolution,” KCNA said in its statement of the elder Kim’s death. While official reports give Kim’s age as 69, Russian records indicate he was born in Siberia in February 1941.

HAPPY VETERANS DAY!!!!!

[Annual Re-Post for Remembrance Day and Veterans' Day]


{Original post 2007]
"I was that which others did not want to be. I went where others feared to go. And did what others failed to do. I asked nothing from those who gave nothing, and reluctantly accepted the thought of eternal loneliness, should I fail. I have seen the face of terror, felt the cold sting of fear, and enjoyed the sweet taste of a moment of love. I have cried, pained and hoped, but most of all I have lived times others would say were best forgotten. At least someday I will be able to say I was proud of what I was!" - An Airborne Soldier