Curiosity Never Kills the Cat: Legal Questions for VERIFIED LAWYERS- ~No Discussion~

[AZlawyer]

Hey AZ Lawyer -

Greg Thompson, was promoted to Sheriff's advisor in 2010 .....prior to that position he was SDSO Forensic Director and in charge of the SDSO Crime Lab for about 6 or so years. Thompson's employment prior to SDSO was Assistant DA under SD DA Paul Pfingst for about 8 years.

Paul Pfingst was retained by Jonah Shacknai the same day his girlfriend was found dead at his Coronado property.

My question = did Greg Thompson have a LEGAL OBLIGATION to recuse himself from the RZ Investigation? If he does have a legal responsibility and it is later proven (cell phone records,depositions,etc.) that he violated law(s) in that regard.....what may be the consequences for that prejudicial behavior as it relates to the RZ Case and the consequence of a possible independent investigation based on his inappropriate actions. Thanks.

I'm not familiar with all the details here, but if all you're saying is that his former boss was representing Shacknai, then no, IMO he would have no obligation to recuse himself. (BTW I'm not sure there is EVER such a thing as a "legal obligation" for a law enforcement officer to recuse himself--I think it's just a question of agency policy.)

 

[Mr Spock]

Az attorney: I was under the impression that Dina, Nina and Adam would have 30 days to respond after being served. Since we have not heard anything other than the initial filing and its been more then 30 days, how would one find out if or when the defendants were served? How would one find out if they responded to the lawsuit through an attorney? How long do the Zahau's have to serve the defendants after the initial filing?

 

[K_Z]

It appears from the language of the civil complaint that the Zahaus have chosen to emphasize Rebecca's death as a murder. My question is, did the Zahaus have to "choose" between wording the complaint as murder, and choosing to word the complaint as a suicide that was caused by the defendants due to something like "negligent infliction of emotional distress?"

[ame="http://en.wikipedia.org/wiki/Negligent_infliction_of_emotional_distress"]Negligent infliction of emotional distress - Wikipedia, the free encyclopedia[/ame]

The reason I ask, is that it appears to me that with the official finding of suicide in Rebecca's death, it would be "easier" to pursue the case to word the civil complaint that the defendants were responsible for "negligent infliction of emotional distress" than murder. California was one of the first states to allow such a reason for wrongful death.

One of the most difficult wrongful death issues, and a particularly poignant illustration of how wrongful death expands liability beyond that at common law, is whether a wrongful death claim can be founded upon intentional infliction of emotional distress that caused the decedent to commit suicide. The first jurisdiction to allow such a claim was California in 1960,[13] followed by Mississippi,[14] New Hampshire,[15] and Wyoming.[

BBM

[ame="http://en.wikipedia.org/wiki/Wrongful_death_claim"]Wrongful death claim - Wikipedia, the free encyclopedia[/ame]


In fact, why word the complaint so definitively? Is it possible to word a complaint sufficiently broadly as to cover "either" murder or suicide?

While I personally think Rebecca was murdered, if I were a family member filing a civil suit, murder seems to be a difficult choice in a case officially ruled a suicide. UNLESS my goal was different, such as bringing official attention to the case of the decedent, versus $$. (I hope that makes sense!)

I'd like to better understand the thinking process involved with the decision to file with "murder" language.

I hope you can comment on this! Thanks in advance!

 

[STS-135]

Just wondering and not that I necessarily believe this is what happened: If Rebecca did in fact commit suicide and someone tampered with the scene of her death (i.e. message on the door, the manner of her death, or where she was found, etc.), what would be the crime, penalty and SOL? Thanks in advance!

 

[AZlawyer]

Az attorney: I was under the impression that Dina, Nina and Adam would have 30 days to respond after being served. Since we have not heard anything other than the initial filing and its been more then 30 days, how would one find out if or when the defendants were served? How would one find out if they responded to the lawsuit through an attorney? How long do the Zahau's have to serve the defendants after the initial filing?

There is no indication on the docket that the Complaint has even been served yet. The Zahaus have 120 days to serve the Complaint.

It appears from the language of the civil complaint that the Zahaus have chosen to emphasize Rebecca's death as a murder. My question is, did the Zahaus have to "choose" between wording the complaint as murder, and choosing to word the complaint as a suicide that was caused by the defendants due to something like "negligent infliction of emotional distress?"

Negligent infliction of emotional distress - Wikipedia, the free encyclopedia

The reason I ask, is that it appears to me that with the official finding of suicide in Rebecca's death, it would be "easier" to pursue the case to word the civil complaint that the defendants were responsible for "negligent infliction of emotional distress" than murder. California was one of the first states to allow such a reason for wrongful death.



BBM

Wrongful death claim - Wikipedia, the free encyclopedia


In fact, why word the complaint so definitively? Is it possible to word a complaint sufficiently broadly as to cover "either" murder or suicide?

While I personally think Rebecca was murdered, if I were a family member filing a civil suit, murder seems to be a difficult choice in a case officially ruled a suicide. UNLESS my goal was different, such as bringing official attention to the case of the decedent, versus $$. (I hope that makes sense!)

I'd like to better understand the thinking process involved with the decision to file with "murder" language.

I hope you can comment on this! Thanks in advance!

First of all, I do think that the primary goal here is to collect evidence for use by law enforcement, not to win the lawsuit.

Second, intentional infliction of emotional distress leading to suicide (I doubt that negligent IED leading to suicide would be accepted as a claim even in California, but I have done exactly zero minutes of research on this subject) might be easier to prove than murder in SOME cases, but not in this one. Infliction of emotional distress is just speculation here.

On the other hand, if the discovery process exposes new information in this regard, the plaintiffs might be allowed to amend their complaint to add such a claim.

The official ruling of suicide means pretty much nothing from an evidentiary standpoint--it doesn't make the case for murder any more difficult.

Just wondering and not that I necessarily believe this is what happened: If Rebecca did in fact commit suicide and someone tampered with the scene of her death (i.e. message on the door, the manner of her death, or where she was found, etc.), what would be the crime, penalty and SOL? Thanks in advance!

I'm not a California lawyer, but it would be some type of obstruction of justice violation. Tampering with evidence, probably. Based on a Google search, it appears that this is only a misdemeanor in California--low fines, 6 months max incarceration. I believe the SOL would be one year, but that wouldn't start running until it was discovered that someone had tampered with the evidence.

 

[K_Z]

Upthread, I had asked what would happen if evidence of criminal conduct were to be uncovered as part of discovery in the civil case. Your answer was that the information would be turned over to police.

I have a question about that process. If information that was evidence of a crime were discovered, would that information be turned over to LOCAL police, such as Coronado or SDSO? Or, would that information be turned over to FEDERAL investigators, since the civil suit is filed in federal court?

I think it's an interesting question on both levels. Many of the key local players have since retired or moved on. And federal investigators would be a completely new group investigating Rebecca's death. There are no "double jeopardy" issues, since no criminal charges ever came about.

Who would have jurisdiction?

And thank you in advance for your time and willingness to answer questions!

 

[AZlawyer]

Upthread, I had asked what would happen if evidence of criminal conduct were to be uncovered as part of discovery in the civil case. Your answer was that the information would be turned over to police.

I have a question about that process. If information that was evidence of a crime were discovered, would that information be turned over to LOCAL police, such as Coronado or SDSO? Or, would that information be turned over to FEDERAL investigators, since the civil suit is filed in federal court?

I think it's an interesting question on both levels. Many of the key local players have since retired or moved on. And federal investigators would be a completely new group investigating Rebecca's death. There are no "double jeopardy" issues, since no criminal charges ever came about.

Who would have jurisdiction?

And thank you in advance for your time and willingness to answer questions!

The plaintiffs could turn over the evidence to whichever law enforcement agency they wished. But I'm not aware of anything that would give the feds jurisdiction here, so if they gave evidence to the feds I'm sure the feds would pass it on to the police who already had a file on the case.

The jurisdiction for the lawsuit would not affect the jurisdiction for a criminal prosecution.

 

[K_Z]

I have a couple questions about the Zahau civil suit against San Diego county, that seeks (among other things) return of Rebecca’s personal property.

There is a list of items being requested in their lawsuit against the County(link to filing below). Presumably, some or all of these items are desired by the plaintiffs, because they are valuable evidence for their 2nd civil case, the wrongful death lawsuit.

I suspect they wanted some, or all, of the items in order to have a more complete explanation in their WDS filing. And I suspect that since they didn’t get them in time, they were worried about the statute of limitations running out as the deadline approached in July, so they went ahead and filed the WDS to avoid missing the deadline. Do you think this could be a correct interpretation?

It is my understanding that some of the items requested that are “personal property” should have been returned to the family a very long time ago, since the case was officially ruled a suicide and closed.

The first civil case against the County was filed 8 May 2013, and is ongoing. The next hearing is November 1, 2013.

Here are a couple posts with links to the civil suit against the county.

[ame="http://www.websleuths.com/forums/showpost.php?p=9433167&postcount=4"]Websleuths Crime Sleuthing Community - View Single Post - Zahau Family Sues County for Additional Evidence[/ame]


[ame="http://www.websleuths.com/forums/showpost.php?p=9837418&postcount=66"]Websleuths Crime Sleuthing Community - View Single Post - Zahau Family Sues County for Additional Evidence[/ame]


1. If there is a “discovery” item requested in the wrongful death suit that is on the unfulfilled list in the civil case against the County, could that item be compelled by the judge in the wrongful death case if requested by the plaintiff attorneys? (Or will this be a turf battle between 2 jurisdictions-- state and federal?)

2. Does the progress of the WDS “compel” certain items to be made available that might be requested as evidence, rather than simply personal property that is wanted by the family to be returned? (By that, I mean would the WDS take some kind of precedence over the unresolved civil suit against the county?)

3. Would the first civil case against the county have to be resolved in order for the items to be available to the plaintiffs (or defendants) in the wrongful death civil lawsuit? The items listed could be of interest to both the plaintiffs and defendants.

I guess what I’m asking is if the wrongful death suit will make it any easier for the plaintiffs to gain access to the items they requested in the lawsuit against the county? Does the progress of either lawsuit affect the other?

I hope I explained my questions clearly enough!

As always, thank you in advance for your willingness to answer questions! Very much appreciated!

 

[kittychi]

Question: in the WDS, will the Zahaus be able to subpoena phone records of AS, NR and DS? IMO That should have been done during the first "investigation."

 

[AZlawyer]

I have a couple questions about the Zahau civil suit against San Diego county, that seeks (among other things) return of Rebecca’s personal property.

There is a list of items being requested in their lawsuit against the County(link to filing below). Presumably, some or all of these items are desired by the plaintiffs, because they are valuable evidence for their 2nd civil case, the wrongful death lawsuit.

I suspect they wanted some, or all, of the items in order to have a more complete explanation in their WDS filing. And I suspect that since they didn’t get them in time, they were worried about the statute of limitations running out as the deadline approached in July, so they went ahead and filed the WDS to avoid missing the deadline. Do you think this could be a correct interpretation?

It is my understanding that some of the items requested that are “personal property” should have been returned to the family a very long time ago, since the case was officially ruled a suicide and closed.

The first civil case against the County was filed 8 May 2013, and is ongoing. The next hearing is November 1, 2013.

Here are a couple posts with links to the civil suit against the county.

Websleuths Crime Sleuthing Community - View Single Post - Zahau Family Sues County for Additional Evidence


Websleuths Crime Sleuthing Community - View Single Post - Zahau Family Sues County for Additional Evidence


1. If there is a “discovery” item requested in the wrongful death suit that is on the unfulfilled list in the civil case against the County, could that item be compelled by the judge in the wrongful death case if requested by the plaintiff attorneys? (Or will this be a turf battle between 2 jurisdictions-- state and federal?)

2. Does the progress of the WDS “compel” certain items to be made available that might be requested as evidence, rather than simply personal property that is wanted by the family to be returned? (By that, I mean would the WDS take some kind of precedence over the unresolved civil suit against the county?)

3. Would the first civil case against the county have to be resolved in order for the items to be available to the plaintiffs (or defendants) in the wrongful death civil lawsuit? The items listed could be of interest to both the plaintiffs and defendants.

I guess what I’m asking is if the wrongful death suit will make it any easier for the plaintiffs to gain access to the items they requested in the lawsuit against the county? Does the progress of either lawsuit affect the other?

I hope I explained my questions clearly enough!

As always, thank you in advance for your willingness to answer questions! Very much appreciated!

Yes, they definitely might have hoped that the "personal property" would give them a stronger case for wrongful death.

The plaintiffs in the wrongful death case could seek discovery from the county, and could seek the same items at issue in the other case, but if there is really some dispute about whether or not the items should be turned over, the new judge will probably let the first judge deal with it. IMO the issues are unlikely to be resolved any faster by being pursued in 2 courts.

Question: in the WDS, will the Zahaus be able to subpoena phone records of AS, NR and DS? IMO That should have been done during the first "investigation."

Yes.

 

[K_Z]

A response to the civil wrongful death lawsuit has been filed by Nina Romano's attorneys:

[ame="http://www.websleuths.com/forums/showpost.php?p=9894293&postcount=459"]Websleuths Crime Sleuthing Community - View Single Post - Estate of Rebecca Zahau et al v. Shacknai et al[/ame]

We have had a discussion about the request to dismiss due to diverisity jurisdiction issues under the "new" language in the law:

[ame="http://www.websleuths.com/forums/showpost.php?p=9894799&postcount=462"]Websleuths Crime Sleuthing Community - View Single Post - Estate of Rebecca Zahau et al v. Shacknai et al[/ame]

[ame="http://www.websleuths.com/forums/showpost.php?p=9894898&postcount=463"]Websleuths Crime Sleuthing Community - View Single Post - Estate of Rebecca Zahau et al v. Shacknai et al[/ame]

Can you comment about the diversity jurisdiction situation if Mary ZL is a citizen (by marriage or preceding marriage), and if Pari may be a resident alien? I can't find anything online about a situation where one plaintiff is a citizen and the other is a resident alien, and the defendants are citizens. What are your thoughts about whether this case meets diversity jurisdiction rules for federal filing? How do you think Judge Whelan will rule on this?

Do you think Mary has standing to bring the case alone, apart from Pari, if Pari were to be severed or withdraw? What are the estate laws on this?

Any other impressions of the response?

Thank you in advance! Always appreciative of your time and opinions!

 

[AZlawyer]

A response to the civil wrongful death lawsuit has been filed by Nina Romano's attorneys:

Websleuths Crime Sleuthing Community - View Single Post - Estate of Rebecca Zahau et al v. Shacknai et al

We have had a discussion about the request to dismiss due to diverisity jurisdiction issues under the "new" language in the law:

Websleuths Crime Sleuthing Community - View Single Post - Estate of Rebecca Zahau et al v. Shacknai et al

Websleuths Crime Sleuthing Community - View Single Post - Estate of Rebecca Zahau et al v. Shacknai et al

Can you comment about the diversity jurisdiction situation if Mary ZL is a citizen (by marriage or preceding marriage), and if Pari may be a resident alien? I can't find anything online about a situation where one plaintiff is a citizen and the other is a resident alien, and the defendants are citizens. What are your thoughts about whether this case meets diversity jurisdiction rules for federal filing? How do you think Judge Whelan will rule on this?

Do you think Mary has standing to bring the case alone, apart from Pari, if Pari were to be severed or withdraw? What are the estate laws on this?

Any other impressions of the response?

Thank you in advance! Always appreciative of your time and opinions!

1. The diversity issue will decide whether the case will stay in federal or state court. The question is whether everyone on the plaintiff side has different citizenship (is "diverse") from everyone on the defendant side. "Citizenship" in this case refers to STATE citizenship, not U.S. citizenship. So I would be a "citizen of Arizona" when deciding a federal court diversity issue. Resident aliens used to be treated as citizens of their state of residence, but now are treated as "citizens of a foreign state"--i.e., diverse from ALL U.S. citizens--EXCEPT if they live in the same state as a party on the other side, in which case there's no diversity jurisdiction.

But before we get into how that would be applied in this case, we're missing something here. The representative of the estate of a deceased person is treated as a citizen of the state of citizenship of the deceased person. 28 USC 1332 (c)(2). Here, the Complaint alleges that Rebecca Zahau was a citizen of Arizona, and also that Dina Shaknai is a citizen of Arizona. Therefore, no diversity and no federal jurisdiction. The case should have been filed in state court IMO. And IIRC the statute of limitations has passed, so the Complaint may be DOA. Unless there is a "savings statute" in California or some other equitable rule that could apply. That would take a few hours of research to figure out. I suspect the Zahaus' attorneys will do the research for us, though.

2. The allegation that the Complaint (Counts 1-3) includes damages barred by CCCP 377.34 seems wrong to me. I don't see anything in Counts 1-3 that would be barred by that rule.

3. The "more definite statement" request is pretty reasonable in this case. As I mentioned before, it seems like the Zahaus don't have the evidence to back up the Complaint yet, and were hoping to get the evidence through discovery.

4. The request to strike punitives is just a throw-away argument IMO, as evidenced by the fact that no reason whatsoever is provided for the request.

Obviously, the lack of diversity is the biggest problem here.

 

[*Lash*]

Thank you AZlawyer!

One question. Nina is a resident of CA and Adam is a resident of TN. The only two who share the same residential state (AZ) would be Rebecca and Dina. Could the fact two of the named defendants have different citizenship than the plaintiff be enough for this to remain in federal court? TIA

 

[AZlawyer]

Thank you AZlawyer!

One question. Nina is a resident of CA and Adam is a resident of TN. The only two who share the same residential state (AZ) would be Rebecca and Dina. Could the fact two of the named defendants have different citizenship than the plaintiff be enough for this to remain in federal court? TIA

No, there has to be complete diversity of citizenship on the two sides to stay in federal court.

 

[Inparadise]

No, there has to be complete diversity of citizenship on the two sides to stay in federal court.

According to Dina, at her appearance/plea to the Coronado city council last September, she claimed that she was a citizen of Coronado..........just sayin.

 

[time]

According to Dina, at her appearance/plea to the Coronado city council last September, she claimed that she was a citizen of Coronado..........just sayin.

Hmmm... and that is officially recorded. But I guess the question is, does that make her a citizen of the state :floorlaugh:.

 

[Inparadise]

Hmmm... and that is officially recorded. But I guess the question is, does that make her a citizen of the state :floorlaugh:.

I don't know, but I was there that day and heard her words.........even though I knew that her claims of being a home owner in Coronado were false.......that little speech could end up biting her in the *advertiser censored*!

 

[Betty P]

No, there has to be complete diversity of citizenship on the two sides to stay in federal court.

The Zahau family lives in Missouri, doesn't that qualify?

 

[*Lash*]

The Zahau family lives in Missouri, doesn't that qualify?

IANAL, but I think AZlawyer answered your question above.

But before we get into how that would be applied in this case, we're missing something here. The representative of the estate of a deceased person is treated as a citizen of the state of citizenship of the deceased person. 28 USC 1332 (c)(2).

 

[Betty P]

IANAL, but I think AZlawyer answered your question above.

But before we get into how that would be applied in this case, we're missing something here. The representative of the estate of a deceased person is treated as a citizen of the state of citizenship of the deceased person. 28 USC 1332 (c)(2).

Thanks. I was wondering if the fact that Pari Zahau is named separately as a plaintiff, would her residence in Missouri be regarded differently. RZ's father's estate is also named as a plaintiff. I may be splitting hairs on this, but was just curious.