BRIEFLY SPEAKING
March 2006
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Inside this Issue:

oing Places G
Costa Rica

In The Law

I Have Heard of
Finger Food, But
This Is Ridiculous

Book Review

oing Places G
Irish Wedding

Clients On The Go

Epicurean
Delights
- Basque Style
Seafood Sauté

Quips & Quotes
GOING PLACES – Costa Rica
After hearing numerous testimonials from
friends and family, my wife, Anne, and I ventured
to Costa Rica to encounter nature at her
most magnificent. Costa Rica is a delightful
combination of natural splendor and resort
luxury.
Costa Ricans boast that they have 32 separate,
distinct ecosystems. Anne and I trekked through
38 of them. Of particular note is the cloud
forests of Monte Verde. There we encountered
a surreal dream world of thick foliage, eerie
mists, exotic plants and, most
especially, rare and beautiful
birds.
We spent a good portion
of the day searching for the
revered Quetzal. This bird,
sacred to the ancient Aztecs
and Incans as well as modern
Costa Ricans, is rarely seen. It
has emerald green plumage, a
red face and feathers over three
feet in length. We huddled in
the misty vegetation perfectly
silent waiting for a glimpse of
the prize. (This reminded me of
sitting in a duck blind in the wet
and cold waiting for a flock of
mallards. I judiciously failed to
mention this to our biology major, Greenpeace
member, tree hugging guide, Rafael.) And yes, we
spotted the Quetzal, took numerous pictures
and were off to the hotel bar.
Our next adventure was to the volcano at
Arenal, the surrounding rain (as distinguished
from cloud) forests and the hot springs
generated by Pele. While Costa Ricans are by
reputation, and are in reality, the world’s nicest
In The Law
By Brian O’Dea
people, I question the wisdom of building resort
hotels on the side of an active volcano. It is a
tad disconcerting to hear a roar and feel your
room tremble while dressing for dinner.
An exciting adventure is traversing the canopy
of rain forests on suspension bridges up to 500
feet above the ground. Most enjoyable if one
does not look down and can ignore the sway of
the span – both of which are impossible. When
the queasiness ebbed, we were able to see
toucans, sloths, arboreal anteaters and various
other undefined mutations,
all to the vast enjoyment
of those without chronic
stomach pains.
Our final stop was the
beach at Manuel Antonio
National Park. Again,
a panoply of natural
phenomenon awaited. The
coastal rivers and mangrove
forests contain monkeys,
river otters, pythons, bats,
butterflies and numerous
varieties of birds. Perhaps
the most disturbing residents
were the crocodiles – some
exceeding twenty feet in
length.
While I highly recommend a trip to Costa
Rica, I must caution you on the following. 1. The
roads are beyond description and belief. Before
you go, I would suggest contacting NASA and
renting a Luna Excursion Module. 2. Do not go
in February during presidential elections (every
four years) as we did. For three excruciating,
endless days, the sale of alcohol is banned in all
of Costa Rica. Costa Rica – pura vida!
By Phil Vermont
There have been several new statutes taking
effect January 1, 2006, which affect the real
estate industry.
First, California Code of Civil Procedure,
section 116.221, has modified the amount
awardable in a Small Claims matter. As of
January 1, 2006, the Small Claims Court has
jurisdiction in an action brought by a natural
person (not a corporation, partnership or
other business entity) of $7,500.00 (up from
$5,000.00) except for certain exceptions (such
as a claim against a defendant guarantor).
Thankfully for residential landlords, California
Code of Civil Procedure, section 1946.1, expired
by its own provisions on January 1, 2006.
Section 1946.1 previously stated that an owner
of residential property must give at least sixty
(60) days’ notice of termination of a monthto-month tenancy if the residential tenant had
occupied the property for more than one (1)
year (if the residential tenant had occupied
the property for less than one (1) year, under
a month-to-month lease, only thirty (30) days’
notice was required). This statute had been
passed by the Legislature in 2001 to remedy
(Continued on page 3)
“I Have Heard Of Finger Food, But This Is Ridiculous”
Although we all know now that Anna Alaya’s claim to have
found a fingertip in her Wendy’s chili last May was just a scam,
expecting the unexpected in food has a surprisingly long and
varied history in jurisprudence. And it is not always clear
when injuries suffered as a result of contaminated food will
be actionable. For food producers and consumers alike, the
status of the law may be hard to swallow.
There is little disputing that injuries caused by foreign or
adulterated food is actionable. A review of the California
cases on the subject demonstrate the acceptance of an implied
warranty of fitness rule against manufacturers or producers of
food. In Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272, 274,
(1939), for example, the plaintiff’s husband purchased a sandwich
that was infested with maggots.The plaintiff ate the sandwich
and not surprisingly became ill. In finding liability against the
manufacturer, the court in Klein concluded that by offering
food for sale, preparers are impliedly warranting the food’s
fitness for consumption. Id. at 284. This same implied warranty
against foreign or adulterated substances in food was extended
to independent restaurant owners who purchased the food
from outside manufacturers in Goetten v. Owl Drug Co., 6 Cal.2d
683, 686 (1936).The Court in Goetten concluded that because
restaurateurs have the food under their control prior to
serving, the fact that the food may have been
manufactured elsewhere does not relieve the
restaurateur of their responsibility to inspect
it prior to serving. Id. at 687.
The more difficult question arises when
the injury is caused by an object deemed
natural to the food being served. In the
early case of Mix v. Ingersoll Candy Co., 6
Cal.2d 674, 675 (1936), for example, plaintiff
was injured after swallowing a fragmented
chicken bone found in a chicken pot pie he
consumed in defendant’s restaurant. Plaintiff
sued the restaurant alleging negligence in
the preparation and serving of the chicken
pie. Id. at 676. In considering the scope of
a restaurant owner’s duty to its patrons,
the court in Mix concluded that the implied
warranty of fitness of food does not
make the restaurant owner an ultimate insurer of the food,
but merely requires that food be reasonably fit for human
consumption. Id. at 681. A chicken pot pie with occasional
chicken bones, the Court concluded, was reasonably fit for
human consumption. Id. at 682. According to the Mix Court,
a consumer who eats meat dishes “ought to anticipate and be
on his guard against the presence of such bones.” Id.
The Mix “foreign natural test” has been cited with approval
and followed by several different state courts and is the
standard in Louisiana, Ohio and North Carolina. The test
creates liability on the basis of breach of implied warranty
of wholesomeness and reasonable fitness for human
consumption for vendors of food containing foreign objects
which injure consumers. Vendors are absolved, however,
where the object is natural to the food and would be expected
Page 2
By Kevin Martin
by any knowing consumer. The foreign natural test was the
rule in California for some time following the Mix decision
and routinely followed. The court in Lamb v. Hill, 112 Cal.
App.2d 41, 42 (1952), for example, affirmed judgment in favor
of a restaurateur and rejected plaintiff’s complaint for injuries
suffered in connection with a chicken bone splinter found in
a chicken pot pie served in defendant’s restaurant. Similarly,
applying the foreign natural test, the California Appeals Court
in Maiss v. Hatch, 8 Cal.Rptr. 351, 352 (1960), reversed a
judgment rendered for a consumer on breach of warranty
after the consumer had broken a tooth on a piece of bone
found in a hamburger served to him by defendant. Explaining
that the warranty involved was against there being a foreign
object in the food, the Maiss Court noted that there was no
evidence presented that the bone was not a beef bone, and
based thereon concluded that the object in question was not
“foreign.” Id. Critics of the foreign natural test, however, argue
that it fails to hold food purveyors liable for demonstrably
negligent conduct in preparation of the food simply because
the object causing injury is deemed natural. This issue was
taken up by the California Supreme Court in the landmark
case Mexicali Rose v. Superior Court, 1 Cal. 4th 617 (1992).
In Mexicali Rose, plaintiff consumer brought an action against
a restaurant for damages sustained after
he swallowed a chicken bone found in a
chicken enchilada. Id. Plaintiff sued on
theories of negligence, breach of implied
warranty, and strict liability alleging that
defendant restaurant negligently left the
bone in the enchilada and that the food
was unfit for human consumption. Id.
at 620. Plaintiff also claimed that he did
not expect to find a bone, and that it
was not common knowledge that bones
were found in chicken enchiladas. Id.
In sustaining defendant’s demurrer, the
Court of Appeal noted it was compelled
under Mix to preclude liability for injuries
caused by naturally occurring substances
in food. Id. The California Supreme
Court, however, disagreed.
Abandoning the foreign natural test of Mix, the Mexicali
Rose decision adopted a new standard based on “reasonable
expectations” of the consumer. Id. at 621. Under the
“reasonable expectations” test, deciding the liability of a food
purveyor for injuries caused by harmful substances in the
food now rested with what the “reasonable expectations” of
the consumer were with respect to that food. Id. at 631. If
the injury-producing substance was natural to the preparation
of the food served, it still could not be considered unfit or
defective, but if the presence of the injury causing substance
was due to the vendor’s failure to exercise due care in food
preparation, the injured patron could sue under a negligence
theory. Id. If the injury causing substance is foreign to the
food served, then the injured patron may also state a cause of
action in implied warranty and strict liability. Id. at 633.
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“I Have Heard Of Finger Food, . . . Continued
This new rule of “reasonable expectations” has been
followed in several California cases since its introduction
in 1992. The inquiry in many respects now focuses on
defendant’s actions in preparing the food, and not so much
what substance was found there. In Ford v. Miller Meat Co.,
28 Cal.App.4th 1196 (4th Dist. 1994), for example, judgment
in favor of defendant supermarket was affirmed against
negligence, strict liability and breach-of-warranty claims
brought by a consumer who allegedly damaged her tooth
when she bit down on a fragment of bone in ground beef
purchased at the market. Evidence in the matter centered
on defendant’s meat manager testimony that the ground
beef obtained from their supplier was regularly compacted
In The Law . . . Continued
By Phil Vermont
some of the drastic evictions that were occurring due to the
dot.com bust. However, when the Legislature passed the
statute, they gave it a finite life of its own, so that it expired
automatically as of January 1, 2006.
Now, the law returns to its previous state; a landlord may
give thirty (30) days’ notice to terminate a month-tomonth tenancy regardless of the term of tenancy.
The issue of disclosing registered sex offenders
in a real property transaction has been modified.
California Civil Code, section 2079.10a, now states
that any contract for lease or rental of residential
property, or sale of residential real property
compromised of 1 to 4 dwelling units, must
contain a new notice as follows:
“Notice: Pursuant to section 290.46 of
the Penal Code, information about specified,
registered sex offenders is made available to
the public via an Internet Web site maintained by
the Department of Justice at www.Meganslaw.ca.gov.
Depending on an offender’s criminal history, this
information will include either the address which the
offender resides or the community of residence and zip
code in which he or she resides.”
Finally, California’s mobile home residency law has been
amended; specifically there is a significant change in California
Civil Code, section 798.36, which prohibits charging a
mobile home owner a fee for the enforcement of rules and
regulations of the mobile home park, except that a reasonable
Book Review
through a steel plate perforated by holes 3 to 4 millimeters
in diameter and therefore bone fragment in the meat could
not have been larger than one-eighth of an inch. Id. at 1199.
According to the Ford Court, bone fragments of one-eighth
inch or less in ground beef could have reasonably been
anticipated by consumer and therefore supermarket’s failure
to remove the bone was not negligent. Id. at 1202.
As it stands, the reasonable expectations test is the rule in
California. Blending portions of the foreign natural test with
negligence standards, the courts seemingly have arrived at a
hybrid analysis that takes into account both the substance
causing injury and the conduct of the food preparer prior to
serving.
fee may be charged by the management for the maintenance
or cleanup of the mobile home park as described in the
new revised statute. If the mobile home park management
determines, in good faith, that the removal of a homeowner’s
personal property from the land and premises upon which
the mobile home is situated is necessary to bring the space
into compliance with the rules and regulations of the
park, the management can remove the property to a
reasonably secure storage facility. The management
must first provide advance written notice of
its intent to remove the property, including a
description of the property. The notice must
include a reference to the regulation justifying the
removal, and must provide an estimate of the
charges. Within seven (7) days from the date
the property is removed, the management
must provide the homeowner a written
notice that includes an inventory of the
property removed, the location of the property,
and a notice of the cost of removal and storage to
be paid by the residents or homeowner to reclaim the
property. If, within sixty (60) days, the homeowner
does not claim the property, the property is deemed to be
abandoned, and the management may dispose of the property
in any manner.
This description of new developments in the law is not
intended as legal advice to any person or entity, and therefore,
you should consult with your counsel before applying any of
these new laws or interpreting them yourself.
By Steve McNichols
“Why Societies Need Dissent” by Cass R. Sunstein, Harvard
University Press, Cambridge Massachusetts, 2003.
In the last decade, America has witnessed a rapid and
profound polarization among our citizens in politics, religion,
economic and social issues. All indications are that this trend
will continue and, possibly, even accelerate. When groups think
that they have all of the answers on a subject, the natural effects
are intolerance of other views and close-mindedness. Another
consequence is the tendency of the groups to move to extreme
views which is caused by failure of group members to entertain
dissenting views. The groups, particularly those on the fringes of
the spectrum, demand and produce blind conformity by creating
the impressions with its members that the group is right and
all other opinions are wrong and not worth considering. The
most harmful outcome is that groups who think that they have
a monopoly on the truth use every means to impose their ideas
and practices on society as a whole.
Cass Sunstein argues persuasively that this type of conformity
and the stifling of dissent deprives society of what it needs
most to survive and prosper; namely, information. “The general
(Continued on page 4)
Achieving Results Through Innovation®
Page 3
Book Review . . . continued
lesson is clear. Organizations and nations are far more likely to
prosper if they welcome dissent and promote openness. Wellfunctioning societies benefit from a wide range of views.”
The book begins with a look at the psychology of conformity
and group polarization. The rather shocking psychological
studies discussed demonstrate a “remarkable human tendency
to conform”. Have you ever wondered, as I have, how Hitler
was able to find the many thousands of people necessary
to run the Nazi death camps? The psychological
studies cited by Sunstein indicate that it may not
have been very difficult, given the apparently
natural tendency of people to conform.
One of the most interesting parts of the book
is the discussion of the acknowledgement by
the framers of the United States Constitution
of the harm caused by conformity, group
polarization and lack of dissent, and their
efforts to design a system of government
that would ensure a place for diverse
views in government. The emphasis today
is on the fact that the framers created a
“representative democracy”. What is often
forgotten is that they also attempted to create
a “deliberative democracy”. That is, the founders attempted
to create “…a system that combines accountability to the
people with a measure of reflection and reason-giving”. The
Founders were well aware of John Stuart Mill’s concern in On
Liberty about the “tyranny of the majority” which is inherent
in any democratic government. Their goal was to create a
well-functioning democratic system that ensures “not merely
responsiveness to the people through elections but also an
exchange of reasons in the public sphere. In a deliberative
democracy, the exercise of public power must be justified by
legitimate reasons – not merely by the will of some segment
of society, and indeed not merely by the will of the majority.”
GOING PLACES – Irish Wedding
by Randy Sullivan
From the first steps off the plane and the view of the
striking green landscape, I knew we had arrived. We were in
Cork, Ireland. Groggy and jet lagged we traveled
fifteen miles south to Kinsale. While driving on
the left side of the road was a challenge, it
paled in comparison to the difficulty of safely
navigating the narrow country roads and the
daring Irish drivers.
Kinsale was our grand idea to simplify the
wedding. This would certainly be better than
handing off loads of cash to the professional,
sophisticated wedding experts who were
constantly developing new ideas to sell to future
newlyweds. Instead we would have a weeklong
adventure in Ireland. Some twenty of our
close family members and friends were along
for the trip.
The tourist season was dying down and
we were left alone to share Kinsale with
Page 4
The Founders knew that error is likely to result when likeminded people, insulated from others, deliberate on their
own. In their view “heterogeneity of opinion can be a creative
force.”
In the early debates on the bill of rights, the Founders
considered and rejected a “right to instruct” provision that
would have given the people the right to instruct their
representatives how to vote. The consensus, as
expressed by Roger Sherman, was that such a right
to defeat the concept of deliberative government
which requires the representatives of the
people to meet, consult and agree among them
on ”such acts as are for the general benefit of
the whole community”. He went on to say that
“if they were to be guided by instructions, there
would be no use in deliberations”.
The Founders placed right and procedures
in the constitution to reduce the risk of
conformity and group polarization. Sunstein
discusses freedom of speech and association,
right to privacy, bicameralism, the presidential
veto, Federalism and combined grants of
interacting powers to the President and Congress.
This book is a powerful reminder of what we all know in
theory if we think about it in the abstract; namely, institutions
and groups are far more likely to achieve their goals if they
subject ideas and leaders to critical scrutiny and ensure that
courses of action face continuing monitoring and review from
outsiders. Diversity and dissent reduce the risks of errors that
come from social influences. “Diversity, openness, and dissent
reveal actual and incipient problems.” As history has shown, and
current events continue to confirm, what we know theoretically
is often difficult to put into practice. Diversity and dissent are
often suppressed in practice – particularly, in times of war, when
avoidance of error and success are most critical.
the locals. The days before the wedding were spent with
visits to sites like Blarney Castle, Killarney, and the Ring
of Kerry, entertaining newly arriving guests, and the
necessary trips to familiarize ourselves
with the town. After all, we did not even
know where the church for the wedding
was located or the restaurant that would
serve as the venue for the reception. Mapquest would be of no help, since there
were no maps of this village. By the day of
the wedding everything was set: ceremony,
our vows, church, priest, restaurant, and
pub. It went perfectly. Ireland exceeded our
expectations and we left wanting more.
Since we were already in Europe we trekked
to Italy for the honeymoon. It was a nice
change, privacy. We saw the sites in Rome,
relaxed on the Amalfi coast, and our final
stop was Venice. Achieving Results Through Innovation®
Irish Wedding . . . continued
Unexpectedly, Irish weather was awaiting us in Venice. The
evening we arrived it was cold and rainy. The next morning it
looked like there was a break in the weather, so with renewed
enthusiasm we headed to Piazza San Marco. While plotting
our path through the labyrinth of windy streets, it began to
sprinkle. Once we arrived to the Piazza we noticed that the
water was not draining, but was flowing up through the drains
from the canal and filling the square. Then, the storm came. It
was pouring. As we waited in the long line of tourists to enter
Basilica San Marco wood planks were placed throughout the
Piazza as a walkway above the flood. By the time we exited
the Basilica the water level had risen at least four inches.
Of course, we thought we would be welcomed with
nothing but warm weather in Italy, so we hadn’t packed our
raincoats. Determined to enjoy our stay in Venice we looked
for gear. Forty-five (45) euros later we had bright red poncho
raincoats and green galoshes. Now we were discreetly
dressed for Venice. We spent the next two days charging
around romantic Venice without fear of puddle or flood.
On our final day it was clear. We spent that evening
listening to a Venetian string quartet play Vivaldi’s Four
Seasons. It was the right way to end a trip that had started
with traditional Irish folk songs played in a warm cozy pub. We had come full circle.
Clients on the Go!
ALLOPTIC – by John Nielsen
Alloptic is an international company headquartered
in Livermore that was founded in June 1999 to address the
“last mile bottleneck” in communications infrastructure. Alloptic offers a complete suite of central office and customer
premise equipment that simplifies the deployment of highly
scalable Fiber-to-the-Home, Business, and Multi-Dwelling Unit
(MDU) applications. Alloptic’s Gigabit Ethernet Passive Optical
Network (GEPON) solution offers an industry-standard
topology, quality of service, economics, interoperability, ease
of use, and virtually unlimited bandwidth required to deliver
today and tomorrow’s voice, video and data services. Alloptic
has recently retained MROT to handle its patent matters,
and we look forward to working with them to expand and
protect their intellectual property assets now and into the
future. www.alloptic.com
ZINUS – by Kevin Martin
Are you having trouble sleeping? If so, one of MROT’s
newest clients ZINUS INCORPORATED may have just the
ticket. ZINUS is a manufacturer of specialty sleep, travel
and other homecare products. This Pleasanton-based
company signature product line Theratouch consists of
memory foam pillows, toppers and accessories all designed to
improve quality of your sleep. ZINUS has recently retained
MROT to handle its patent and trademark issues. We look
forward to working with ZINUS in helping their clients, and
ours, rest easy. www.zinus.com
Epicurean Delights
Basque Style Seafood Sauté
– By Phil Vermont
This is a recipe I learned from my French
Aunt, who resides in the South of France,
in Anglet, on the Atlantic Coast. This is a
slight modification of a shrimp scampi dish.
Ingredients:
2 lbs. uncooked, deveined, peeled large
shrimp (or 2 lbs. combination large shrimp
and giant sea scallops, or substitute giant
scallops for shrimp);
Half a bunch of fresh parsley;
5 to 8 cloves finely crushed fresh garlic;
White wine of your choice, preferably dry
or semi-dry;
Ground black pepper;
Salt;
Fresh thyme and fresh rosemary, finely
powdered (about 1 tsp. of each);
Angel hair pasta;
Small button mushrooms.
Achieving Results Through Innovation®
Begin by sautéing in either margarine (for a lighter dish) or butter, the fresh
garlic, herbs, ground pepper to taste, and a small pinch of salt (be careful
with the salt, because the seafood is salty in itself). Sauté on low heat until
garlic begins to become soft.
Put ½ to ¾ of one bottle of white wine into the sauté pan, add the
mushrooms, and slowly simmer until flavors mix and about ½ of the white
wine has boiled out (in other words, reduce the sauce).
Set the wine, garlic, mushroom and butter sauce aside for at least one
hour, and let cool. Approximately 10-15 minutes before serving the dish,
reheat the sauce until it slowly begins to simmer and add the shrimp and/or
scallops (simmer the shrimp and scallops in the sauce on a low to medium
heat for no more than 10-15 minutes, stirring occasionally).
Serve the seafood mixture with sauce over angel hair pasta.
This dish goes very well with a simple salad, using an authentic French
vinaigrette dressing.
To modify this dish, and make it more Basque-style, add 1 to 2 medium,
peeled and chopped tomatoes at the same time as the wine and
mushrooms.
It is highly suggested that this dish be served with a French sweet baguette,
so that the sauce/juice can be enjoyed fully.
Page 5
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PLEASANTON, CA
PERMIT NO. 354
5000 Hopyard Road, Suite 400
Pleasanton, CA 94588
Phone: 925-460-3700
Fax: 925-460-0969
E-Mail: info@McNicholsLaw.com
Web Site: McNicholsLaw.com
Briefly Speaking is offered as information only. It is not intended as legal, tax, or investment advice and should not be substituted for the counsel of your personal advisor.
Achieving Results Through Innovation®
Quotes from Confucius By John Nielsen
“A superior man is modest in his speech, but exceeds
in his actions.”
“He who wishes to secure the good of others has
already secured his own.”
“If I am walking with two other men, each of them will
serve as my teacher. I will pick out the good points of
the one and imitate them, and the bad points of the
other and correct them in myself.”
“Of neighborhoods, benevolence is the most beautiful. How can the man be considered wise who when he
had the choice does not settle in benevolence.”
“Our greatest glory is not in never falling, but in rising
every time we fall.”
“Real knowledge is to know the extent of one’s
ignorance.”
“Study the past, if you would divine the future.”
“The perfecting of one’s self is the fundamental base of all progress and all moral development.”
Page 6
“The superior man
thinks always of virtue;
the common man thinks
of comfort.”
“Those who know the
truth are not equal to those who love it.”
“To practice five things under all circumstances
constitutes perfect virtue; these five are gravity,
generosity of soul, sincerity, earnestness, and kindness.”
“Virtue is not left to stand alone. He who practices it
will have neighbors.”
“What you do not want others to do to you, do not
do to others.”

“When you are laboring for others let it be with the
same zeal as if it were for yourself.”
“Work to become, not to acquire.”
Achieving Results Through Innovation®