Lawyer Santa Barbara Official Publication of the Santa Barbara County Bar Association
Santa Barbara Official Publication of the Santa Barbara County Bar Association February 2012 • Issue 473 Lawyer Southern California Institute of Law Judge Kenneth Starr US Solicitor General 2007 Anthony Capozzi State Bar President Member, Judicial Performance Commission 2004 Celebrating 25 Years of Legal Education in Santa Barbara & Ventura Counties Thanks To Our Commencement Speakers For Encouraging The Finest Traditions of the Legal Profession Hon. Bill Lockyer CA Attorney General 2003 Justice Paul Turner Presiding Justice CA Court of Appeal Los Angeles 1996 Justice Ming Chin CA Supreme Court 2006 Justice Norman L. Epstein Presiding Justice CA Court of Appeal Los Angeles 2010 Hon. Tani Cantil-Sakauye Chief Justice CA Supreme Court 2011 Prince Zeid Ra'ad Al-Hussein President, Governing Body United Nations International Criminal Court 2008 2 Santa Barbara Lawyer www.lawdegree.com Justice Arthur Gilbert Presiding Justice CA Court of Appeal-Ventura 2001 February 2012 3 Santa Barbara County Bar Association www.sblaw.org A Publication of the Santa Barbara County Bar Association 2012 Officers and Directors Catherine Swysen President Sanger, Swysen & Dunkle 125 De La Guerra Street, Ste. 102 Santa Barbara, CA 93101 T: 962-4887; F: 963-7311 [email protected] Christine Chambers Santa Barbara Lawyer Hager & Dowling 319 E. Carrillo St. Santa Barbara, CA 93101 805-966-4700 [email protected] Donna Lewis President Elect Attorney at Law 789 North Ontare Road Santa Barbara, CA 93105 T: 682-4090; F: 682-4290 [email protected] Danielle De Smeth Liaison Greben & Associates 1332 Anacapa Street, Ste 101 Santa Barbara, CA 93101 963-9090; Fax: 963-9098 [email protected] Scott Campbell Secretary Rogers, Sheffield & Campbell, LLP 427 East Carrillo Street Santa Barbara, CA 93121-2257 T: 963-9721; F: 966-3715 [email protected] Naomi Dewey Santa Barbara Lawyer Hardin & Coffin 1531 Chapala St, Ste 1 Santa Barbara, CA 93101 963-3301; Fax: 963-7372 [email protected] Matthew Clarke Chief Financial Officer Christman, Kelley & Clarke 831 State Street Santa Barbara, CA 93101 T: 884-9922; F: 866-611-9852 [email protected] James Griffith Bench & Bar Attorney at Law 1129 State Street, Ste 30 Santa Barbara, CA 93101 308-0178; Fax: 563-9141 [email protected] Mack Staton Past President Special Projects Awards and Board Development Mullen & Hanzell LLP 112 East Victoria Street Santa Barbara, CA 93101 T: 966-1501; F: 966-9204 [email protected] Sanford Horowitz Events SB Office of the DA 1112 Santa Barbara Street Santa Barbara, CA 93101 569-2436; Fax: 560-1077 [email protected]. ca.us Marysol Bretado Events Attorney at Law 5733 Hollister Ave, Ste 4 Goleta, CA 93117 692-4940 [email protected] Gregory McMurray Bench & Bar Attorney at Law 1035 Santa Barbara St, Fl 2 Santa Barbara, CA 93101 965-3703; Fax: 965-0678 [email protected] Santa Barbara Lawyer Brandi Redman MCLE Special Projects Attorney & Counselor at Law 1021 Laguna St Apt 8 Santa Barbara, CA 93101 252-8418; Cell: 252-841 [email protected] Angela Roach Bench & Bar Relations University of California Santa Barbara Employee and Labor Relations 3101 SAASB Santa Barbara, CA 93106-3160 [email protected] Kelly Scott Liaison County Counsel of Santa Barbara 105 E Anapamu St Rm 201 Santa Barbara, CA 93101 568-2950; Fax: 568-2982 [email protected] Carl straub, jr. Events FLIR Commercial Vision Systems Inc. 70 Castillian Dr. Goleta, CA 93117 690-7190; Fax: 690-8897 [email protected] Lida Sideris Executive Director 15 W. Carrillo Street, Ste. 106 Santa Barbara, CA 93101 T: 569-5511; F: 569-2888 [email protected] ©2011 Santa Barbara County Bar Association CONTRIBUTING WRITERS Niki Chopra Richardson Angela Roach Robert Sanger James Shipley Catherine Swysen Stephen Underwood EDITOR Naomi Dewey ASSISTANT EDITORS Christine Chambers Lida Sideris MOTIONS EDITOR Michael Pasternak VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PROFILE EDITOR James Griffith PHOTO EDITOR Mike Lyons PRINT PRODUCTION Wilson Printing DESIGN Baushke Graphic Arts Submit all EDITORIAL matter to [email protected] with “submissIon” in the email subject line. Mission Statement Submit all MOTIONS matter to Michael Pasternak at [email protected]. The mission of the Santa Barbara County Bar Association is to preserve the integrity of the legal profession and respect for the law, to advance the professional growth and education of its members, to encourage civility and collegiality among its members, to promote equal access to justice and protect the independence of the legal profession and the judiciary. Submit all advertising to SBCBA, 15 W. Carrillo Street, Suite 106, Santa Barbara, CA 93101 phone 569-5511, fax 569-2888 Classifieds can be emailed to: [email protected] Santa Barbara County Bar Association 4 Santa Barbara Lawyer Santa Barbara Official Publication of the Santa Barbara County Bar Association February 2012 • Issue 473 Lawyer Articles Sections 7 President’s Message, By Catherine Swysen 30 Verdicts & Decisions 8 Letter from the Editor, By Naomi Dewey 32 Motions 10 SBWL Annual Dinner Proves Memorable Evening for 34 Calendar All, By Angela D. Roach 13 Trap for the Unwary—or How to Avoid Malpractice when Presenting a Government Claim, By Stephen D. Underwood 16 Equal Access to Justice Fundraiser, By Niki Chopra Richardson; Photos by Priscilla 26 In Memoriam: Roy Stephen “Steve” Kinnaird 27 Science and the Law The Reference Manual on Scientific Evidence, Third Edition, By Robert Sanger 29 Legal Aid and the Doctrine of Cy Pres, By James Shipley 35 Classified 35 Section Notices About the Cover Photo by Matt Mazza, Esq., who has taken a sabbatical from his practice to travel the world with his wife Wendi and two delightful children. Look for an article about life in India, Nepal and Thailand (and thinking outside of the law) in March’s edition of Santa Barbara Lawyer. Judge Arthur A. Garcia; Barbara Babcock, author and Professor Emerita at Stanford Law School, and Judge Patricia Kelly at Santa Barbara Women Lawyers’ Annual Dinner. Photo Credit – Laura Dewey. February 2012 5 McIvers&Slater_7.5x4.5_2011 5/4/11 3:52 PM Page 2 McIvers & Slater Mediation and Arbitration Kevin Thomas McIvers Hon. James M. Slater [email protected] Judge of the Superior Court, Ret. [email protected] Excellence in Dispute Resolution Business Disputes Real Estate Elder Abuse Professional Liability Medical Malpractice Insurance & Bad Faith Employment & Wrongful Termination Construction Contract & Defect Personal Injury & Wrongful Death (805) 897-3843 www.McIversandSlater.com DaviD K. HugHes retired trial Attorney • • • • • • • • • • • • • • • • ArbitrAtion v ChristiAn ConCiliAtion Contact David at 805-962-2566 or [email protected] nominal Fees & Pro bono Work 6 Santa Barbara Lawyer SBCBA President’s Message By Catherine Swysen S adly, the year started with the passing of Richard Lee, on January 9, 2012. Rick was a member of our legal community for over thirty years. He made Santa Barbara his home after graduating summa cum laude from Santa Clara Law School in 1977. He started as an associate attorney with the firm of Schramm and Raddue and later became a senior partner. In 1993, Rick married fellow lawyer, Diana Jessup Lee. Following the dissolution of Schramm and Raddue in 1996, Rick started his own solo practice while Diana joined the newly formed firm of Reicker, Pfau, Pyle & McRoy, where she is still a partner. Rick was a successful solo practitioner until 2007 when he joined Reicker, Pfau as a partner. He practiced there until his medical retirement in December 2010. Rick was active in both legal and community organizations. He served twice on our board. He also held leadership positions with the Legal Aid Foundation, the Alano Club, the Barristers’ Club, St. Andrew Presbyterian Church, and Teen Court. As his family and friends remembered at his service, Rick loved being a lawyer and helping people. His commitment to serving others continued even after being diagnosed with frontotemporal degeneration (FTD) and ALS. Until his final month, he volunteered at the Unity Shoppe and the Central Office of AA. Above all, Rick was dedicated to his family, a loving and supportive father and husband, a loyal friend and a mentor to many. He will be greatly missed. On February 11, I attended an all State Bar Association Meeting in San Francisco moderated by the State Bar President, Jon Streeter, in partnership with the Open Courts Coalition. The meeting was attended by the major local bar associations as well as numerous legal aid organizations and specialty bars. Chief Justice Cantil-Saukaye, Ron Overholt, Interim Administrative Director of the Courts, and Curtis Child, Director of AOC Legislative Services of the Administrative Office of the Courts were among the speakers. The State Bar’s main agenda this year is to assist the judicial branch with advocacy to ensure proper funding of the judicial branch. The purpose of the meeting was to educate the local bar associations on the issue and urge February 2012 them to join the advocacy effort. More on this next month. Finally, the annual Bench and Bar Conference on January 14 was a huge success. Lawyers came from as far as Thousand Oaks and San Luis Obispo to attend. Kudos to Jennifer Hanrahan and Brandi Redman for a job well done. Special thanks to Brian Hanrahan who worked tirelessly throughout the day to make the conference a success. Catherine Swysen Children’s Waiting Room offers childcare, resources for parents attending court hearings A trip to the courthouse isn’t always fun for kids – especially when they are accompanying parents involved in stressful legal proceedings. Judge Denise de Bellefeuille reminds us that Santa Barbara Superior Court offers a “Children’s Waiting Room” to those using the Santa Barbara courthouses. The Honorable Deborah Talmage Children’s Waiting Room in the Figueroa Courthouse provides free childcare for children between the ages of 2 and 12. Toddlers must be potty trained. “Tell your clients. Take advantage of this wonderful service. The kids will love it – the room is well appointed with games, toys, computers and movies to keep them entertained while you are in court,” says Judge de Bellefeuille. The service, which was dedicated on April 1, 2011, is staffed by licensed caregivers, and is run by the courts in partnership with the Community Action Commission. 7 SBCBA Letter from the Editor By Naomi Dewey W elcome to the February 2012 edition of Santa Barbara Lawyer! As we move into the new year, we are excited to announce some changes to the way your magazine is published. The biggest change is to our deadlines. Traditionally, the deadline for magazine content has been on the second Monday of each month, with flexibility for certain events and must-read articles. We are taking the bold move of changing that, bringing the deadline forward to the FIRST Monday of each month. We are kind folks here at the magazine, but there are no longer any soft deadlines without pre-approval. Over the coming months, you will begin to see a fresher, more readable format for the magazine; the earlier deadline will allow us to streamline the magazine process behind the scenes, freeing our wonderful designer up to focus on what she does best - design. The second change is a focus on content. Our March edition, “Outside the Law,” will showcase news and features from our colleagues who have stepped out of the box and made life changes that should inspire all of us. Our cover photo this month was taken by one such lawyer, Matt Mazza (formerly at Stradling Yocca) who is traveling with Naomi Dewey his family in Thailand, Nepal, and India. In April, we will focus on Earth Day, and in May, as part of President Catherine Swysen’s efforts to revitalize Law Week, we will focus on the ABA’s Law Day 2012 theme, “No Courts, No Justice, No Freedom,” which underscores the importance of the courts and their role in ensuring access to justice for all Americans. The third change is a small one. Look for Santa Barbara Lawyer submission guidelines on the Santa Barbara County Bar website, and you will find information about submitting your photos, articles, motions, verdicts, and settlements. Finally, this is, and will remain, your magazine. We look forward to working with all of you! Connecting x ATTORNEYS • PARALEGALS • LEGAL STAFF Edward Jones ranked “Highest in Investor Satisfaction with Full Service Brokerage Firms, Two Years in a Row” confidential employment placement Visit jdpower.com Daniel J De Meyer www.edwardjones.com Financial Advisor Member SIPC . 125 E De La Guerra St Ste 101 Santa Barbara, CA 93101 805-564-0011 Lawyer Referral Service 805.569.9400 Santa Barbara County’s ONLY State Bar Certified Lawyer Referral Service A Public Service of the Santa Barbara County Bar Association 8 Santa Barbara Lawyer Kathi A. Whalen ~ President 79 E. Daily Drive Suite #249 Camarillo, CA 93010 Ventura County 805 389-3663 Santa Barbara 805 965-2020 Cell 805 443-8422 Fax 805 512-8118 www.whalenbryan.com SBCBA Santa Barbara Lawyer – Submission Guidelines & Key Dates Santa Barbara Lawyer publishes monthly. In 2012, the deadline for content, copy, and photographs is on the first weekday of each month. There is no “soft-deadline” without pre-approval from the Editor. Articles Include a title or headline with your article. Include your name/title, and a short biography at the end of your article. Articles do not need to be laid out; plain text is easier for us to work with. Shorter paragraphs work best for our newsletter format. Aim for 600-1200 words. Microsoft Word, WordPerfect, .rtf or .txt files are ideal. No PDFs. Please proof your material before you send it in! We cannot guarantee that we will catch every spelling, grammar, or punctuation error, and proof-reading takes time away from the design and editing process. Photographs and images Color photographs are preferable. Send the largest file (highest resolution) of the best quality possible. Photographs must be a minimum of 300 dpi. Do not edit or crop your photos. Do not embed images in Word or any other application. Send the photographs as separate attachments. Captions are best sent with their image - for example: image file name caption [ARTICLE NAME] 1.jpg Jane Smith, Robert Redford, and Paul Newman [ARTICLE NAME] 2.jpg Attendees at the Legal Aid luncheon. If there are several images and they will not fit in one email, send what will fit and include the captions to those images in the email. Coverage: From time to time, an article idea, feature, profile, event, or photo opportunity comes along that you think should be in the magazine. Please send it to us as it happens or when you think of it. This makes it easy for us to plan ahead and make sure it is covered; hunting around for photos after an event takes time. Verdicts & Settlements: Santa Barbara Lawyer seeks to objectively report verdicts, decisions, and settlements from cases involving lawyers and firms based in Santa Barbara County. Space in the magazine: Santa Barbara Lawyer is printed in multiples of four pages (i.e. an edition will be 28/32/36/40 pages long). When space is a concern, we may shorten or even omit an article. When this is done, we take into account timing, need to publicize your events and deadlines, and whether the article could run in the following edition. Content: Santa Barbara Lawyer is a publication of the Santa Barbara County Bar Association, written by and for our membership. We reserve the right to reject content that runs counter to SBCBA’s published mission and goals or that is not of interest to our readership. Contact information Content should be sent to [email protected]. Verdicts & Settlements should be sent to [email protected] Motions (short news articles/announcements) should be sent to [email protected] Editorial Board Naomi Dewey (Editor) , Phone: (805) 963-3301 (office) or cell (805) 452-3763 , Email [email protected] Christine Chambers (Assistant Editor) , Phone: (805) 966-4700, Email [email protected]. Mike Lyons (Photo Editor) , Phone: (805) 570-0269, Email: [email protected] Mike Pasternak (Motions Editor), Email: [email protected] Lindsay Shinn (Verdicts & Settlements Editor), Phone: (805) 966-1501, Email: [email protected] Lida Sideris (Santa Barbara County Bar Executive Director) handles advertising sales and inquiries, Phone: (805) 5695511, Email: [email protected] February 2012 9 Legal Community SBWL Annual Dinner Proves Memorable Evening for All By Angela D. Roach O n December 12, 2011, Santa Barbara Women Lawyers held its Annual Dinner at the Canary Hotel. This event is always the crowning event of the year for SBWL, but I believe all those who attended would agree that the 2011 Annual Dinner was special. Guests entered the Canary Hotel to festive holiday decorations and made their way to the reception downstairs near the Grand Ballroom. The reception was packed and guests were warmed by outstanding wine donated by Victor Abascal, Winemaker and Owner of Vines on the Marycrest Winery. The event was strongly supported by the local Bench and community leaders. SBWL was pleased to welcome the many Judges of the Santa Barbara Superior Court who attended including Presiding Judge Brian Hill, Assistant Presiding Judge Arthur Garcia, Judge Donna Geck, Judge Colleen Sterne, Judge Denise de Bellefeuille, Judge George Eskin, Judge Patricia Kelley, Commissioner Pauline Maxwell, and Commissioner Denise Motter. Additionally, SBWL was pleased with the support from local community leaders including Janet Wolf, Santa Barbara County Second District Supervisor, and Salud Carbajal, Santa Barbara County First District Supervisor. After the reception, the dinner program began. As 2011 SBWL President, I opened the evening with some brief remarks about the current status of women in the legal profession and the importance of SBWL in our community. Woman lawyers have come a long way since the first women became a lawyer in California over 130 years ago. However, despite that, we have not reached gender parity in our profession. It has been said, “[t]here is no longer an intake problem, but an upgrade problem.” Inequities remain with regard to pay for the same work, who holds leadership positions in the profession, and representation of women on the bench. SBWL continues to seek equality in the legal profession, encourage women to join the legal field, promote women lawyers in our community, and use our skills and abilities to positively impact our community as a whole. SBWL fulfilled this charge in 2011 through edu10 cational events, mentoring and collective efforts to improve our community as a whole. SBWL hosted MCLE events on the topic of unequal pay, health issues that affect women and the law, work life balance, and tips for effective oral argument. In 2011, SBWL increased the amount of mentoring opportunities for women lawyers in our community. Finally, SBWL started new programs that positively impact our community as a whole. SBWL started the ‘Food from the Bar’ program in 2011, and with the support from other legal organizations in our community raised approximately $7,000 and collected several hundred pounds of food for local families in our community. Finally, I recognized that SBWL’s 2011 accomplishments would not have been possible without an outstanding Board of Directors which included: Gabriela Ferreira, Jennifer Yates, Alison Holman, Emily Allen, Michael Colton, Susie Davidson, Danielle De Smeth, Jessica Johnson, Pauline Maxwell, Brandi Redman, Marianne Stein, and Pauline Ung. Keynote Speaker Barbara Babcock Tells the Story of Clara Foltz Attendees were next rewarded by an inspiring keynote address by Barbara Babcock, retired Stanford Law School Professor, pre-imminent researcher on women and the law, and author. Ms. Babcock is an impressive and inspiring women lawyer in her own right. She received her law degree from Yale Law School in 1963. After graduation, she clerked for Judge Henry Edgerton of the U.S. Court of Appeals for the District of Columbia Circuit, worked for a noted criminal defense attorney, and subsequently served as the first Director of the Public Defender Service of the District of Columbia. She was the first woman faculty member hired and tenured at Stanford Law School. She founded the women’s legal history biography project and is known nationwide for her research into the history of women in the legal profession. In particular, Ms. Babcock is known for her research into the life of California’s pioneering first female lawyer, Clara Foltz. Without Ms. Babcock, Clara Foltz may have been relegated to a footnote in our history. In 2011, Professor Babcock released the only book written about Clara Foltz, “Woman Lawyer: The Trials of Clara Foltz.” After her book was published, Ms. Babcock embarked on a year long book tour, speaking at both large and small events about Clara Foltz. Ms. Babcock spoke about the diverse places this tour took her throughout the year. SBWL’s Annual Dinner was the final stop on this tour. Ms. Babcock then spoke about Clara Foltz. Clara Foltz, a single mother, moved to California from the mid-West seeking opportunity. Women were not permitted to attend law school in the 1880s. Instead of accepting this fate, Santa Barbara Lawyer Legal Community February 2012 11 Legal Community Clara Foltz sued for the right to attend California’s only law school. She lobbied the Governor to sign the Woman Lawyer’s Bill--legislation entitling women to practice law. She then became the first woman admitted to practice law on the West Coast. In California, Ms. Foltz became the first female deputy district attorney, the first woman to serve as legislative counsel, the first woman to prosecute a murder case, to hold statewide office, and to become a notary public. Ms. Folz tried cases in court—before women were even permitted to serve on juries or vote. Critically, Ms. Foltz was also the founder of the public defender movement. Ms. Babcock provided some insight into how Clara Foltz responded to the institutional and cultural challenges she faced. For example, following an oral argument relating to her legal challenge to the prohibition that women could not enter law school, a male observer commented that she should stay out of the profession and remain at home raising children. Undeterred, she responded with her quick wit that she would not want to raise a child to grow up with his narrow-minded viewpoint. Both Barbara Babcock and the story of Clara Foltz inspired the crowd. Ms. Babcock concluded her remarks that she was certain Clara Foltz would have been proud of the SBWL organization and the gathering at the Annual Dinner. Attorney of the Year Award Presented to Judge Donna D. Geck The second portion of the program was devoted to the presentation of the 2011 Deborah M. Talmage Attorney of the Year Award. Each year, this honor is bestowed on an outstanding legal professional who is dedicated to the success of women, mentors her colleagues and other women, is committed to the highest level of ethics, has achieved professional excellence, and who is committed to our Santa Barbara Community. SBWL was honored to present the 2011 award to Judge Donna Geck. Judge Geck’s impressive resume demonstrates she has achieved professional excellence and is committed to the highest level of ethics. Judge Geck was appointed to the bench in June 2010. She originally handled criminal arraignments in Department 8 and currently presides over a civil calendar in Department 4. Prior to her elevation to the bench, Judge Geck was a partner at the Santa Barbara firm of Hager & Dowling, a civil litigation practice where her experience included jury trials, court trials, arbitrations, and mediations. Judge Geck was also the first female President of the local California Coast Chapter of American Board of Trial Advocates (ABOTA). Judge Geck was also a board certified as a Civil Trial Specialist by the National Board of Trial Advocacy. 12 A self-described “accidental lawyer,” Judge Geck originally pursued a career in journalism. During college, she spent her summers working for a TV station in Bismarck, North Dakota called KFYR, an NBC affiliate, where she did on-location news reporting. She decided to pursue legal reporting and attended law school at the University of North Dakota Law School. During and after law school she worked for two other news stations doing on-location news reporting. She then worked in the Public Defender’s office where she was in the courtroom everyday and obtained valuable trial experience. Ultimately, she left the Public Defender’s office and practiced law in several civil defense firms before coming to California to join Hager & Dowling. What cannot be found on Judge Geck’s impressive resume is her unwavering commitment to mentoring, supporting and encouraging women lawyers. While at Hager & Dowling, Judge Geck readily embraced the role of mentor to young lawyers, law clerks, and legal assistants. As a result, women in the firm went to her for counsel, feedback, and guidance. Judge Geck encouraged women lawyers to take on leadership roles both in the firm and in the community. Judge Geck also inspired numerous individuals to become lawyers—by inspiring legal assistants and law clerks to go to law school. This includes a new lawyer who will join the 2012 SBWL Board. One of her former colleagues, who is currently in law school, said this about Judge Geck: “Judge Geck was an outstanding lawyer, now Judge, and mother. She balances her career and family with strength, integrity, and humility. She is a class act. If Judge Geck can do it, I know it is possible for me to do it too.” Judge Geck has also enriched the Santa Barbara Community as a whole. Judge Geck continues to serve as a Teen Court Judge, a program she has supported for many years. Judge Geck is a former Santa Barbara Women Lawyers Board member. Judge Geck has served as a Settlement Master for the Superior Court. Judge Geck is also currently a Master at the William L. Gordon Inns of Court. Judge Geck graciously accepted the award. She acknowledged the outstanding women lawyers who received the award in past years. Judge Geck bestowed the award back to SBWL for its accomplishments. Judge Geck also acknowledged and thanked her long-time friend Joan Bircher, and her children, which included Troy and Tyler Geck who attended the dinner. The evening ended onward looking to 2012 when the 2012 Board of Directors was sworn in by SBWL Founding Mother, Deborah M. Talmage. In all, the 2011 SBWL Annual Dinner was a memorable evening for all who attended. See more photos on page 26. Santa Barbara Lawyer Legal News Trap for the Unwary —or How to Avoid Malpractice when Presenting a Government Claim By Stephen D. Underwood M any practicing lawyers may have missed the recent case of DiCampli-Mintz v. County of Santa Clara (2011) 195 Cal.App.4th 1327 (Review Granted, August 2011 by the California Supreme Court), particularly if you don’t regularly litigate against local governmental agencies. Whether or not your practice involves litigation against government entities, it may in the future. This article discusses DiCampli-Mintz and the potential pitfalls lawyers face when presenting claims to governmental agencies. The facts in DiCampli-Mintz are as follows; and as often happens, bad facts make bad law. On April 4, 2006, defendants Drs. Bao–Thuong Bui and Abraham Sklar performed a hysterectomy on Ms. DiCampli-Mintz at Valley Medical, a hospital owned and operated by the County of Santa Clara. Complications arose during the surgery. Some months later, in mid–2006, plaintiff went to Valley Medical’s emergency department because she was in a great deal of pain. On this occasion, an emergency room physician told her that blood vessels had been damaged in the first surgery, requiring a second surgery. Another doctor expressed sympathy for her condition and asked if she had consulted an attorney. By early April 2007, plaintiff had engaged an attorney. He prepared a letter for transmission to Valley Medical, as well as Drs. Bui and Sklar, giving them notice, in accordance with Code of Civil Procedure § 364 (Notice of intention to Commence Action), that “Hope DiCampli–Mintz will file suit against you for damages resulting from the personal injury of Hope DiCampli–Mintz.” The letter stated in some detail that defendants negligently performed the hysterectomy causing significant harm to Ms. DiCampli-Mintz. The letter contained a request that the recipient “forward ... [the letter] to your insurance carrier and have them contact the undersigned at their earliest convenience.” The County conceded that so far as content is concerned, the letter satisfied the requirements of the government claims act and constituted a tort claim.1 (See Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 701–702.) February 2012 Plaintiff’s attorney delivered three copies of this letter addressed to Bui, Sklar, and the Risk Management Department, to Cynthia Lopez of the Medical Staffing Office in the County Administration Building for delivery to each of the individually named parties. The attorney sent three additional copies, similarly addressed, by certified mail; these were received by Valley Medical’s mail services department. Plaintiff’s attorney received a recorded telephone message from David Schoendaler, who was a liability claims adjustor, working for the Santa Clara County Risk Management Department, that the 364 Notices had been received. A few days later, Mr. Schoendaler and plaintiff’s attorney spoke by telephone. According to Schoendaler, he noted receipt of the Notice of Intention; he verbally opined that service on Santa Clara Valley Medical required a tort claim which was late; he verbally questioned whether a tort claim was required as to Dr. Sklar and Dr. Bui, and indicated that he would look into that; he stated that Ms. DiCampli–Mintz had an interesting case; he made note of Plaintiff’s obesity and said a theory of defense was that Plaintiff placed herself at risk with her obesity; and he finally advised that Deputy County Counsel, Dave Rollo, would be the attorney handling the defense for Santa Clara County. Mr. Schoendaler never mentioned that the Notice of Intention was presented to the wrong party. Plaintiff never received written notice that her claim was untimely or otherwise deficient. Plaintiff ultimately filed a complaint naming Bui, Sklar, and Valley Medical as defendants. The complaint acknowledged that Plaintiff was required to comply with the government claims statutes, but asserted that she was excused from doing so because defendants failed to provide notice to Plaintiff as required by Government Code §§ 910.8, 911, 911.3,2 and therefore waived any defenses they may have had to the sufficiency of Plaintiff’s claim (CCP § 364 - Notice of Intention to Commence Action) as presented. A brief introduction to the government claim filing requirements might be helpful. Generally, any claim for money or damages must be presented to a government agency within six months of the accrual of the claim. (Government Code §§ 905, 911.2). Failure to timely present such a claim works as a statute of limitations to foreclose a claimant from successfully pursuing litigation.3 As noted in footnote two, if the claim is deemed insufficient, the governmental agency must notify the claimant within 20 days of any defect in the claim; failure to do so waives any insufficiency, and the governmental agency has 45 days within which to return an untimely claim. Failure to return the untimely claim to plaintiff waives any defense that the claims are untimely. However, the central issue in this case involved Govern13 Legal News ment Code § 915, specifically subsections (a) and (e). The No officially reported case in the last 40 years has found issue as presented to the Supreme Court for review is one of substantial compliance with the claims presentation act if first impression: Can the delivery of a government claim to the claim never is delivered to or “actually received” by the a public employee not designated under Government Code officials designated in section 915. In fact, the cases that § 915 be considered “substantial compliance” for purposes have considered this issue during that 40 year period all of the Government Claims Act? have found no compliance. (See Del Real v. City of Riverside Government Code § 915 (a) and (e) provide: “(a) A claim, (2002) 95 Cal. App. 4th 761, Life v. County of Los Angeles any amendment thereto, or an application to the public (1991) 227 Cal.App.3d 894, Munoz v. State of California entity for leave to present a late claim shall be presented (1995) 33 Cal.App.4th 1767, and Westcon Construction Corp. to a local public entity by either of the following means: v. County of Sacramento (2007) 152 Cal.App.4th 198.)5 The claim presentation requirements “(1) Delivering it to the clerk, secretary, of the Claims Act have often been called or auditor thereof. a “trap for the unwary” due to the seem“(2) Mailing it to the clerk, secretary, The claim presentation ingly complicated rules for presenting a auditor, or to the governing body at its requirements of the claim to a public entity. (Life v. County of principal office. Los Angeles (1991) 227 Cal.App.3d 894, “(e) A claim, amendment or application Claims Act have often 899.) However, with respect to section shall be deemed to have been presented in 915, it seemed as clear as any statute compliance with this section even though been called a “trap for could be – the government officials who it is not delivered or mailed as provided in the unwary” due to the are specifically identified, at least by this section if, within the time prescribed title, in a claim, must receive a copy of for presentation thereof, any of the fol- seemingly complicated the complaint. If a claimant or his/her lowing apply: rules for presenting a attorney have any question about who “(1) It is actually received by the clerk, those officials are, they must search a secretary, auditor or board of the local claim to a public entity. public entity web site, calling any of public entity.” those listed officials, or through a Public Section 915 specifically provides that a Records Act request. In addition, public claim must either be delivered or “actually agencies, other than cities and counties, are required to file received” by the clerk, secretary, auditor, or governing body such information with the Secretary of State and that inforof the local public entity. Ms. DiCampli-Mintz conceded mation is listed on the Roster of Public Agencies maintained her claim was neither delivered nor actually received by by the Secretary of State. (Government Code § 53051). the official recipients mentioned in section 915. From a practical standpoint, practitioners should not mail, The circumstances in which failure to present a claim deliver, or otherwise present a claim, or what purports to to the proper recipient most often arises is in the medical be a claim, to any division, department, or employee of a malpractice area, as occurred in the DiCampli-Mintz case. 4 governmental entity, other than those designated in section Some counties have hospitals, most have clinics, and if the medical facility, physician or other medical provider 915. Anything less may be considered legal malpractice if is sued for alleged malpractice, CCP § 364 requires they the claim is not actually and timely received by the proper receive notice. While a “364 Notice” may constitute a valid government official. The Supreme Court’s decision in claim, it still must be delivered or actually received pursuDiCampli-Mintz should decide the issue once and for all ant to section 915 by the officials listed therein. At least as to whether section 915 means what the plain language that was what public entities believed was the law prior seems to say. to DiCampli-Mintz. Stephen Underwood, former Chief Assistant County Counsel for Notwithstanding Ms. DiCampli-Mintz’s failure to presSanta Barbara County, is currently Professor of Law and Faculty ent her claim to the proper government official, the Sixth Chair at the Santa Barbara-Ventura Colleges of Law. He is also District Court of Appeal found that because the claim was General Counsel for the CSAC Excess insurance Authority, a Joint received by the County’s Risk Management Division and Powers Agency. He is the principle author of the California SuCounty Counsel was notified, there was “substantial compreme Court amicus brief in DiCampli-Mintz v. County of Santa pliance” with the claim presentation requirements. That Clara filed on behalf of the CSAC Excess Insurance Authority, the decision created substantial uncertainty within the public League of California Cities and the California State Association entity community. 14 Santa Barbara Lawyer Legal News of Counties. These three organizations represent almost all public entities in California, including schools and special districts. Endnotes 1 2 3 4 5 Goodbye! Farewell! We’ll miss you! Not all CCP § 364 notices will qualify as a claim, but may be considered to have substantially complied with the Claims Act if the contents of a claim as required by Government Code § 910 are in the “364 Notice.” These sections relate to a “Notice of Insufficiency” of the claim (§ 910.8), defense as to sufficiency is waived if Notice not provided (Government Code § 911) and failure to notify claimant that claim is presented late – waives untimely presentation. (Government Code § 911.3) The Claims Act does allow excuses to the six month limitations period when there is surprise, inadvertence, mistake, or excusable neglect, but in no event can a claim be presented after one year from the accrual of the underlying cause of action. (Government Code § 946.6) Cities, schools, and specials districts generally are not medical providers, so this specific factual issue is not likely to occur. However, claims often are misdirected to departments, divisions, or employees of an entity. Other than DiCampli-Mintz only one case in last 80 years, Jamison v. State of California (1973) 31 Cal.App.3d 513, found substantial compliance when a claim was not presented to those officials listed in section 915. Jamison was expressly disavowed in Del Real v. City of Riverside (2002) 95 Cal. App. 4th 761. If you have not renewed your membership in the Santa Barbara County Bar Association, this will be your last issue of Santa Barbara Lawyer magazine. To renew your membership, find the application on page 28. Thanks to Our Fee Arbitration Panel! The SBCBA would like to thank the following Mandatory Fee Arbitration attorneys and arbitrators for their service in 2011. The program, which operates under the auspices of the State Bar of California, provides services to resolve fee disputes between clients and attorneys. Joseph AllenDonna Lewis Marilyn Anticouni Matthew Long Eric Berg Patrick McCarthy Alan Blakeboro Steve Penner Scott Campbell Mac Sanborn Arthur Carlson Heather Smith Penny Clemmons Jon-Erik Storm Howard Everakes John Thyne III Bruce Glesby Rachel Wilson Michael Hall Gray Eric Woosley David Grokenberger Jeffrey Young Marlea Jarrette Victor Zilinskas Paul Kremser February 2012 15 Legal Community Equal Access to Justice Fundraiser By Niki Chopra Richardson; Photos by Priscilla O n December 15, 2011, Legal Aid Foundation of Santa Barbara County hosted its inaugural Annual Campaign for Equal Access Fundraising Luncheon at Fess Parker’s DoubleTree Resort. Over 150 people attended this powerful, mission-based event. Legal Aid’s Executive Director Ellen Goodstein talked about her vision for the agency—when there might be a time when no one is denied access to justice in Santa Barbara County. “I see a time when Legal Aid Foundation of Santa Barbara County serves as a ‘shining star’ to the entire State of California; where Legal Aid is able to fully assist every resident of this county that walks through its doors,” said Ms. Goodstein. Cappello & Noël, LLP made a five-year financial commitment to support the Legal Aid Foundation of Santa Barbara County. The firm announced it would donate $10,000 a year for five years to the non-profit organization, which provides free legal services to those in need. “The Legal Aid Foundation plays a critical role in Santa Barbara County,” said Mr. Cappello, “Those of us in the legal community should do everything we can to support the Legal Aid’s efforts to help the less fortunate receive legal representation. 2012 Mock Trial Competition Scorers Needed Earn MCLE Credits While Providing Community Service Santa Barbara Courthouse Saturday, February 25th and Saturday, March 3rd Contact Josefina Martinez at [email protected]. 16 The need for assistance is growing as economic conditions force families and individuals into legal situations they never could have imagined,” says Leila J. Noël, partner at Cappello & Noël. “Our firm is a strong believer in the Foundation’s good work and its steadfast commitment to giving equal legal access to all.” The event included a testimonial by a grandmother who was helped with obtaining guardianship of her sick twoyear old granddaughter, a short film produced by Legal Aid Board Member Saji D. Gunawardane that highlighted the work of the Foundation, a moving rendition of “I Believe” by opera singer and retired attorney Marilyn Gilbert, a visionary speech by Legal Aid’s Executive Director Ellen Goodstein and finally, the challenge by A. Barry Cappello for others to join him in becoming members of Champions of Justice—a multi-year giving society charged with helping establish the sustainability and long-term stability of the 52-year old agency. Law firms Fell, Marking, Abkin, Montgomery, Granet & Raney, LLP and Reicker, Pfau, Pyle, & McRoy, LLP and attorneys Allan Ghitterman, D. William Wagner, Sherry Melchiorre, Amy Steinfeld, Penny Mathison and Lessie Nixon all rose to the challenge and pledged multi-year commitments to Champions of Justice. Cappello & Noël, LLP has a successful history of representing individuals and small business owners who take on large corporations and their powerful law firms. In particular, Cappello & Noël is acknowledged as the pioneer in lender liability law, where borrowers seek justice against lender misconduct. It also represents plaintiffs in complex business litigation, catastrophic injury, and wrongful death cases, and plaintiffs’ class actions. The firm is a strong proponent of equal access to the legal system and professional legal representation regardless of an individual’s financial circumstances. The mission of the Legal Aid Foundation of Santa Barbara County is to provide high-quality legal services in order to ensure that low-income persons and seniors have access to the civil justice system in times of crisis – to secure safe, habitable shelter, adequate income, and protection from domestic violence and elder abuse. Last year, Legal Aid assisted over 5,100 residents of the county. Of this, 1,026 were seniors and nearly 600 were victims of domestic abuse. The agency has recently launched the Campaign for Equal Access to Justice under the umbrella of which lies Champions for Justice, a multi-year giving society and Patrons for Justice, a monthly giving club with maximum monthly donations of $75/month. For more information about Champions of Justice or Patrons of Justice, contact Legal Aid’s Development Director Niki Richardson at 805.963.6754 x109. Santa Barbara Lawyer February 2012 17 Equal Access to Justice Standing: Joe Bush, David Hughes, Tom Hinshaw, Linda Krop, Michael Colton and Scott Felson. Seated: Sigrid Twomey, Sue McCollum, Audrey Austin, Vanessa Kirker Standing: David Borgatello, Richard Heimberg and Dan Simon. Seated: Harvey Wolf, Roger Aceves, Penny Mathison, and Glenn Robertson. A Fundraiser for Legal Aid Standing: Laurie Cox, Warren Butler, Yvonne Cudney, Susan Epstein. Seated: Jake Ainciart, Biannet Garcia, Brandi Redman, Elizabeth Diaz 18 Santa Barbara Lawyer Cyndi Silverman, Nitana Sanchez and Judi Weisbart Marilyn Gilbert, Ellen Goodstein, A. Barry Cappello & Leila Noël Standing: Amy Steinfeld, Courtney Davis, Saji Gunawardane, Linda Minky and Dylan Johnson. Seated: Marilyn Metzner, Hon. Thomas P. Anderle, Bill Poulis, and Erika Pearsons. Standing: Richard Hecht, Ben Feld and Rhonda Henderson, Megan Compton, and Armando de Fillipo. Seated: Russell Ghitterman, Allan Ghitterman, Hon. Susan Rose, Gordon Roberts. Standing: Kristin Kirby Whelan, Marvel Kirby, Pamela Haskell, Gary Gulbransen, Kevin Whelan, Susan Miles Gulbransen, Christopher Haskell. Seated: Dr. Robert Failing, Nancy Ann Failing. February 2012 19 r u b e n st e i n s o r e n s e n a dr servi c e s Mediation, Arbitration Referee, Special Master We are proud to announce the opening of our new office at 211 E. Anapamu Street, Santa Barbara 93101 Ready to set tle your case Real property Probate Business Family business and succession Employment Personal injury Judith Rubenstein, J.D., M.A., Psych. [email protected] www.rsmediate.com t 805.892.2747 dl 8 0 5 . 6 3 7 . 6 8 5 0 Lol Sorensen, J.D., M.S.W lo l @ r s m e d i a t e . c o m www.rsmediate.com t 805.892.2747 dl 8 0 5 . 6 8 9 . 6 6 5 4 To schedule a consultation, please call 805-879-7517 15 West Carrillo, Suite 300 • Santa Barbara, CA 93101 info @ elinorreiner.com • www.elinorreiner.com 20 Santa Barbara Lawyer In Memoriam Roy Stephen “Steve” Kinnaird F ormerly of Hot Springs, AR, Roy Stephen “Steve” Kinnaird, age 61, son of Mr. and Mrs. Roy Kinnaird, Jr. died December 1, 2011 in Santa Barbara, California. He was predeceased by his mother, Ann Talley Kinnaird. He is survived by his father, Roy Kinnaird, Jr. of Hot Springs, and sisters Jane Ann Fortenberry of Little Rock, and Melissa Kinnaird Wise (Philip) of Dallas. He is also survived by his nieces Anna Fortenberry, Katie Peek (Hamilton), Alex Bledsoe and nephew Stephen Wise. In 1974 he graduated from the University of Arkansas, and in 1981 obtained his J.D. from Santa Barbara College of Law. He was an associate in the law offices of Kris Kallman and was a member of the State Bar of California and the Santa Barbara County Bar Association. Steve was an avid horseman. He and his horse, Slim, participated many years in the Santa Barbara Trail Rid- ers, local rodeos, team penning competitions, and also rode every year in the Santa Barbara Fiesta Parade. He was a member of Los Rancheros Visitadores. Music was also an important part of his life, and he played the guitar both as a hobby and professionally as a member of many groups including The Blue Laws and Bark Roy Stephen “Steve” Kinnaird Street Boys. His sweet and tender spirit will be missed. His silent guitars will haunt us. Those who knew and loved him will be saddened by his early departure from us. In lieu of flowers, the family requests donations to Disabled American Veterans, PO Box 14301, Cincinnati OH 452050301 or Hearts Adaptive Riding Academy, PO Box 30662, Santa Barbara CA 93130. Graveside services were held at Memorial Gardens in Hot Springs, AR on January 14th. A Celebration of Life was held in the Ranchero Room at Harry’s in Santa Barbara Tuesday January 24th. Notice of Fee Changes Effective November 1, 2011 A t its September 2011 session, the Judicial Conference of the United States approved changes to the miscellaneous fee schedule for U.S. District Courts. The following changes will become effective November 1, 2011. • The attorney admission fee (including pro hac vice admissions) will increase from $275 to $305. • The fee for filing a miscellaneous action (i.e., any document that is not related to a pending case or proceeding) will increase from $39.00 to $46.00. • The fee for a records search (per name or item) will increase from $26.00 to $30.00. • The certification fee (per document) will increase from $9.00 to $11.00. • The fee for reproducing an audio recording of a court proceeding will increase from $26.00 to $30.00. • The fee for record retrieval (from the Federal ReFebruary 2012 cords Center or the National Archives) will increase from $45.00 to $53.00. • The fee for a returned check (insufficient funds) will increase from $45.00 to $53.00. • The fee for an appeal to a district judge from a judgment of conviction by a magistrate judge in a misdemeanor case will increase from $32.00 to $37.00. • The fee for a certificate of good standing will increase from $15.00 to $18.00. • The fee for a civil action under the Cuban Liberty and Democratic Solidarity Act of 1996 (LIBERTAD) will increase from $5,431.00 to $6,355.00 (this fee is in addition to the $350.00 civil case filing fee). Fees are authorized by 28 U.S.C. 1914 and Civil L.R. 11-1(d) and 11-3(c). Complete federal court fee schedules are available at: http://www.uscourts.gov/FormsAndFees/ Fees.aspx. 21 Criminal Justice Science and the Law The Reference Manual on Scientific Evidence, Third Edition None of that—what is at the heart of criminal cases—was covered by the prior editions.5 Daubert, Kumho, and (Kelly) Frye By Robert Sanger T he Federal Judicial Center and the National Research Council of the National Academies have just released, in September 2011, the Third Edition of the Reference Manual on Scientific Evidence.1 The First Edition was published in 19942 and a Second Edition in 2000.3 The idea was to create a reference work that would “assist judges in managing expert evidence, primarily in cases involving issues of science or technology.”4 The Manual does not replace reading the scientific literature, consulting experts, and studying the subject matter in depth; however, it does give a solid jumping off place to address the courts, especially during motions in limine, to admit or exclude expert testimony. The Manual, now over 1,000 pages, is disseminated to all federal judges. It is also available to state court judges as well as federal and state practitioners. To date, the civil bar has been most active in litigating issues relating to scientific evidence. Tremendous amounts of time and money have gone into litigating the admissibility of expert testimony relating to toxic torts, medical malpractice, and personal injury accidents. The revisions resulting in this Third Edition of the Manual are likely to provoke controversy among civil lawyers in that, for instance, there is a new chapter on “Exposure Science” in addition to the existing one on “Epidemiology.” This will be of significance to the mass torts litigation bar on both the plaintiff and defense sides. The Third Edition is likely to be featured in some of that litigation. Nevertheless, the book is the culmination of substantial work and review by judges, lawyers, and scientists, and remains a worthy reference. In this month’s Criminal Justice column, we will look briefly on the state of Daubert (and current science) and at its applicability in a Frye jurisdiction. We will then look at the new Manual in relation to criminal cases. There is a new 75 page chapter on “Forensic Identification Expertise” which covers a good percentage of the expert testimony offered in criminal trials. It includes extended discussions of fingerprints, handwriting, firearms, bite mark, and hair identification, as well as general references to other issues like gun shot residue, trace, and other areas of expert testimony. 22 All judges and lawyers should consult the Manual before considering expert or scientific testimony. In federal practice, one can be pretty much assured that the judge and her or Robert Sanger his clerks, interns, and externs all have a copy of the Manual and use it. In state court, it is less certain that there will be a copy in chambers, but reference to it by practitioners will increase its use. This Manual is the work, now continuing for over two decades, of the best minds in law and science throughout the country. It does not mean that it is correct in all details, but it is a substantial foundation for understanding the scientific method in general6, and for understanding its application in many particular circumstances. The Manual 1st Ed. was published just after the United States Supreme Court decision in Daubert.7 In that case, and, later, in Joiner8 and Kumho Tire,9 the Court created the beginnings of a federal jurisprudence of expert testimony based on science. The Court considered amicus briefs from American Association for the Advancement of Science and the National Academy of Sciences. In the end, the Daubert opinion endorsed a general empiricist view of science and suggested that trial judges look at four criteria to determine if proffered scientific evidence should be admitted: 1) falsifiability or testability; 2) peer review, 3) rate of error and 4) acceptance in the scientific community. The Court in Daubert held that the Frye10 test, applied in California under Kelly,11 was superseded by the Federal Rules of Evidence. The Daubert Court based its decision on the supervisory power of the Court over the federal judiciary and, specifically, interpreted the requirements of FRE 702. Daubert does not stand as a constitutionally mandated rule of law that would be applicable to the states. Therefore, states like California are not constitutionally precluded from continuing to apply the Frye test. Nevertheless, Frye jurisdictions are impacted by the rationale of Daubert and its progeny. The fourth criteria in Daubert—acceptance by the scientific community—is essentially the same as the first prong of Frye.12 But, neither Santa Barbara Lawyer Criminal Justice science nor the scientific community are frozen in time in is intelligible, based on the latest thinking in the area and is 1923, when Frye was written. Daubert simply reviewed published for federal judges. Until this Third Edition, there the scientific method and the state of science in 1993 and has not been a similar judicial reference work on the kinds held that a scientific standard should be used by the trial of forensic science and pseudoscience that we encounter judges. They are designated as “gatekeepers” to avoid the in everyday criminal cases.17 Regarding criminal cases, the Manual states, “To date, introduction of untrustworthy evidence proffered as sciDaubert has rarely been used in the forensic context.”18 entific. Kuhmo Tire, simply expanded that role to expert In fact, “few prosecution witnesses have been excluded testimony in general. The Daubert Court made the obvious in criminal prosecutions.”19 It also recognizes, however, point that the courts should strive to deal with science in a that the National Academy of Science report, published modern fashion. It is hard to see how that rationale would in 200920, was highly critical of the forensic sciences in not pertain to state judges applying Frye. criminal cases. With developments like Melendez-Diaz v. The California Evidence Code, like the Federal Rules Massachusetts21, and the publication of of Evidence, contains a statutory basis the new material on forensic sciences in for the regulation of expert testimony. this new Third Edition, there may be a Evidence Code Section 720 limits who All judges and lawyers change. Moreover, the Manual specifimay be called as an expert witness and cally highlights some of the failings of Evidence Code Section 801 and 803 should consult the prosecution forensic experts noted by limit the opinions of an expert. Expert the National Academy of Sciences, and medical testimony are not strictly Reference Manual on such as, lack of validity studies, lack regulated by Kelly-Frye in California,13 but that does not mean that they are not Scientific Evidence before of proficiency testing, lack of adequate regulated. There is existing precedent controls in laboratories ,and the abuse of for some judicial regulation of scienthe witness stand by experts who claim considering expert or tific experts requiring the proponent to too much for the prosecution. show that the expert used acceptable scientific testimony. The new Chapter on Forensic Idenprocedures in applying the science to tification Expertise looks specifically the facts of the present case.14 It was at fingerprint, handwriting, firearms, hoped that the Lockheed Litigation Cases15 bite-mark, and hair identification testiwould determine the extent of judicially imposed restricmony. There are overall sections on scientific techniques, tions on expert testimony, but those cases were summarily on recurring problems with purported expert testimony, on dismissed by the California Supreme Court.16 Furthermore, discovery issues and limitations of expert testimony. The in criminal cases, the defendant has a Constitutional right Manual is not comprehensive regarding these forensic idento due process under the Fifth and 14th Amendments which tification issues, nor with regard to other kinds of scientific require the court to exclude unreliable evidence. evidence. However, as with the rest of the Manual, even if Whether by virtue of Daubert and the Federal Rules of a particular subject is not thoroughly discussed, what exists Evidence, or by virtue of Kelly-Frye and the California provides a basis for critical thinking about admissibility. Evidence Code or by Due Process, litigants are entitled to The Manual highlights the danger of allowing routine have in limine hearings to determine whether or not expert junk science before juries. It cites a study showing that of evidence should be admitted. Therefore, the kind of in200 wrongful convictions, 55% were based on flawed exformation amassed by the Federal Judicial Center and the pert testimony, second only to false eye-witness identificaNational Research Council in the Manual 3rd Ed. is useful tions, which were present in 79% of the cases.22 However, to all lawyers and judges in making these determinations correcting this problem will require a paradigm shift on the in all jurisdictions, including California. part of the courts. If a Daubert type scientific approach is to be applied, the courts will have to rethink whether to admit The Third Edition of the Manual the forensic science and the usual forensic crime lab witness We have used the Manual in its First and Second Editions just because they are always admitted. This will require in numerous civil and criminal cases, both in state and feda multi-stage analysis, applying science and the Evidence eral court. When tackling an area like Statistics and Multiple Code at each stage to prevent these demonstrably unfair Regression analysis, for instance, it is invaluable to be able results. If the testimony is allowed, then the judges will to point the judge and opposing counsel to a treatise that have to pay much closer attention to how such testimony February 2012 23 Criminal Justice should be limited. The in limine process should involve four distinct stages: 1) Whether the purported science is a science (is it falsifiable, testable, peer reviewed, subject to error testing and accepted in the scientific community); 2) Whether the witness is a scientist (or a true expert in the scientific discipline); 3) Whether the data reliable is in this case (not corrupted in place, not contaminated when handled and tested, sufficient for valid testing, etc.); and, if those three criteria are met, 4) What limitations should be placed on the witness while testifying (reporting only on the data and on scientific hypotheses derived from the data, on attempts to disprove the hypotheses and limited claims of the significance of findings).23 Conclusion There is no reason why trial judges in criminal cases should continue to let in expert testimony from people who are not testifying to scientific hypotheses, but who take the stand to bolster the argument of the prosecution. Even when a motion is adequately briefed and vigorously argued, judges in criminal courts tend to find that government proffered testimony is “close enough for government work.” Yet, they or their fellow judges would not allow the same sort of thing in civil litigation. The Third Edition of the Manual should be in every trial judge’s chambers, state and federal. Lawyers need to direct judges to the discussions of purported expertise and help them understand what does and does not make it a science. Judges should be made aware of the issues regarding each of the proposed stages of inquiry so that, if testimony is allowed, they can effectively reign in witnesses who exceed the bounds of their expertise, and the scope of what the evidence actually shows. Robert Sanger is a Certified Criminal Law Specialist and has been a criminal defense lawyer in Santa Barbara for 38 years. He is a partner in the firm of Sanger, Swysen & Dunkle. Mr. Sanger is an Officer of California Attorneys for Criminal Justice (CACJ) and is the Co-Chair of the CACJ Death Penalty Committee as well as a Director of Death Penalty Focus and a Member of the ABA Criminal Justice Sentencing Committee and the NACDL Death Penalty Committee. Endnotes 1 Reference Manual on Scientific Evidence, Third Edition, National Academies Press, Washington, D.C. (2011) (hereineafter, “Manual, 3rd Ed.” Or “Third Edition”) 2 West Publishing Co. (1994) (hereinafter, “Manual, 1st Ed.”). 3 West Group (2000) (hereinafter, “Manual 2nd Ed.”). 24 4 Manual, 1st Ed., 1. 5 There was a chapter on DNA in the Second Edition that has been slightly revised and moved from the end (Manual, 2nd Ed. 485) to near the beginning of the Third Edition (Manual, 3rd Ed. 129). Other than that, the other most common criminal issues , were not addressed until now. 6 The treatment in the Manual of the scientific method in general is, just that, general. Criticism can be leveled against this general treatment of the scientific method from a scientific standpoint and from the perspective of the philosophy of science. Some of these criticisms originate with the Supreme Court’s discussion of the subject in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). For instance, Karl Popper’s theory of falsifiability has been poorly understood and David Goodstein’s chapter “How Science Works” (Manual 3rd Ed. 37) treats it dismissively. I am presently addressing some of these issues in a law review article that will, I hope, shed more light on the scientific method. The article will also address procedural issues relating to in limine Daubert (or Kelley/Frye) motions. Nevertheless, the manual and Goodstein’s article give an introduction to lawyers and judges to the scientific method as a prelude to the substantive chapters . 7 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). 8 General Electric Co. v. Joiner, 522 U.S. 136 (1997). 9 Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999) 10 Frye v. United States, 54 App. D. C. 46, 47, 293 F. 1013 (1923). 11 People v. Kelly, 17 Cal. 3d 24 (1976). 12 It could also be argued that Frye only applies to novel scientific evidence and not to existing science or to non-scientific experts. 13 See, e.g., Roberti v. Andy’s Termite & Pest Control, Inc., 113 Cal. App.4th 893, (2003) and People v. Stoll,49 Cal.3d 1136 (1989). 14 People v. Venegas, 18 Cal.4th 47 (1998). That would be the third prong of Frye. Venegas is an early DNA case that held that DNA analysis was not a new scientific technique and so did not fall under the first prong of Kelly-Frye. 15 23 Cal. Rptr. 3d 762 (Ct. App. 2005), petition for review granted, 110 P.3d 289 (Cal. 2005), petition for review dismissed, 83 Cal. Rptr. 3d 478 (2007). 16 There is an argument that Evidence Code Section 802 also extends full Daubert authority to judges in California . See Edward Imwinkelreid, and David Faigman, Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony, 42 Loyola of Los Angeles L.R. 427 (2009). 17 There is also a new chapter on Neuroscience (Manual 3rd Ed. 747) which will be of significance in organic brain damage cases relating to a lack of capacity, or legal insanity, or to mitigation evidence in capital cases. 18 Manual 3rd Ed. 26. 19 Id. 27. 20 National Research Council, Strengthening Forensic Sciences in the United States: A Path Forward, U.S. Government Printing Office (2009). 21 129 S.Ct. 2527 (2009). The fact that the Supreme Court has confirmed that a defendant in a criminal trial has a Sixth Amendment right to confrontation of a forensic expert who did testing in the laboratory, suggests that the court regards the foundation for expert opinions seriously. 22 Manual 3rd Ed. 62, n. 32. 23 These four stages are logical, based on good science and supported by case law and will be elaborated on in the forthcoming law review article referred to in note 6, supra. Santa Barbara Lawyer February 2012 25 Legal Community SBWL Annual Dinner, see page 8 for complete coverage 26 Santa Barbara Lawyer “Finally, someone my clients can count on just like they count on me.” Your relationship with your clients is all about trust. They trust your integrity and expert legal advice. And they value the personal and confidential relationship you share. It’s very much the same at Montecito Bank & Trust. Like you, we believe in longstanding client relationships. In offering creative solutions for each person’s unique needs. And especially in earning their trust with personal commitment and professional expertise. Whether it’s designing an investment portfolio, managing multiple real estate properties or planning charitable gifts, you can count on our Wealth Management team to provide your clients with a level of service that meets not just their needs, but your standards. Wealth advisory services – one of the many Paths to prosperity® you’ll find at Montecito Bank & Trust. What’s your path? WEALTH MANAGEMENT Investment Management - Trust Services - Estate Administration Real Property Management - Philanthropic Services www.montecito.com Call for more information Santa Barbara: 1106-E Coast Village Road, Montecito, CA 93108 • 805 564-0219 Solvang: 591 Alamo Pintado Road, Solvang, CA 93463 • 805 686-8620 Ventura/Westlake Village: 701 E. Santa Clara Street, Ventura, CA 93001 • 805 830-8005 Montecito Bank and Trust: “Count on me” New Zip 2012 February Santa Barbara County Bar Association Wealth Management- 7.5” x 10” Non- Bleed 27 Member FDIC 2012 Membership Application Member Name: _____________________________________________________________________________________ Check here if you do not want your name and office address disclosed to any buyer of Bar Assoc. mailing labels. Check here if membership information is the same as last year. If so, the rest of the form may be left blank. 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SCHEDULE OF DUES FOR 2012 Active Members $130 Student Members $30 New Admittees (First Year Attorneys Only) $00 Affiliate Members (non-Attorney members only) $65 Santa Barbara County Bar Foundation donation $______.__ Total amount enclosed $______.__ AREAS OF INTEREST OR PRACTICE (check box as applicable) ADR Family Law Civil Litigation In-House Counsel & Corporate Law Debtor/Creditor Intellectual Property/Tech. Business Elder Law Real Property/Land Use Employment Law Taxation Estate Planning/Probate I am interested in receiving information about the SBCBA Lawyer Referral Service Mail completed form along with check to: Santa Barbara County Bar Association, 15 West Carrillo Street, Suite 106, Santa Barbara, Ca 93101 Tel: (805)569-5511 Donations to the Santa Barbara County Bar Foundation are tax deductible to the full extent provided by law to a 501(c)(3) non-profit organization. 28 Santa Barbara Lawyer Legal News Legal Aid and the Doctrine of Cy Pres By James Shipley C y pres comme possible, French for “as near as possible”, is increasingly used by Courts to award unclaimed class action settlement funds to charitable organizations. In these uncertain economic times, these funds may prove to play a vital role in the continued vitality and success of Legal Aid programs. Courts, mass tort, and class action practitioners, and the bar at large, should be aware of the doctrine and endeavor to incorporate it into practice as a means of assisting Legal Aid organizations and other charitable entities. The doctrine of cy pres was initiated in the context of trusts. When the original objective of a trust was no longer viable or germane, leftover or remaining funds were diverted to other similar purposes in lieu of dissolving the trust. Courts would infer new objectives for trust funds when the stated objectives became obsolete, impractical, or illegal. The cy pres doctrine was essentially a rule of construction used to preserve testamentary charitable gifts. In one famous example, a trust was set up in the 1800s to provide funds to turn public sentiment against slavery. When slavery was abolished, the Court allowed the remaining trust money to be used for a purpose “as near as possible” to the initial intent—in that case to provide funds to educate former slaves. (Jackson v. Phillips (1867) 96 Mass. 539.) The courts utilized a fluid approach in place of rigid or static procedures with funds to be expended for their next best use in lieu of dismantling a trust. This fluid approach was “borrowed” in class action cases. In many class action lawsuits, there often remains a residue of undistributed funds because members of a class action lawsuit pass away or cannot be found at distribution, or because some class members fail to submit a claim. In other cases, individual damages may be de minimus and notification costs and distribution costs surpass the class action award. The question is what to do with the reservoir of undistributed funds. In the case of State v. Levi Strauss & Co. (1986) 41 Cal.3d 460, the California Supreme Court applied the doctrine of cy pres to undistributed settlement funds, permitting such funds to be distributed to the “next February 2012 best” class when the actual plaintiffs could not be compensated individually. Code of Civil Procedure § 384 codifies the doctrine of cy pres in California. Section (a) provides: “It is the intent of the Legislature in enacting this section to ensure that the unpaid residuals in class action litigation are distribJames Shipley uted, to the extent possible, in a manner designed either to further the purposes of the underlying causes of action, or to promote justice for all Californians.” The statute mandates that the court account for class payments and to ultimately amend the judgment to direct the class action defendant to pay residual unpaid funds to various named organizations. Specifically included in the named recipients are “nonprofit organizations providing civil legal services to the indigent.” In the midst of California’s historic economic crisis, Legal Aid revenue is down. Between 2008 and 2009, revenue from one of the core sources of funding for legal aid, the Interest on Lawyers’ Trust Accounts (IOLTA) dropped almost 70% due to declining interest rates—from $22 million to $7 million, according to Stephanie Choy, Managing Director of California’s Legal Services Trust Fund Program. In Santa Barbara, funding from County Human Services was cut 42%. An increase in the number of people in need of civil legal aid has occurred concurrently with a collapse of funding available to finance this assistance. People’s hearts are in the right place, as evidenced by California’s recent passage of the Sargent Shriver Civil Counsel Act, a three year pilot program that will provide poor individuals a lawyer in certain cases, including domestic violence claims, child custody cases, and housing matters. The problem is that the decline of funding has, in practice, resulted in cutbacks, loss of programs, and work furloughs for the typical legal aid organization. Continued on page 31 29 Legal News Verdicts and Decisions Fogh v. Los Angeles Film Schools, LLC et al. Los Angeles County Superior Court, Central District Case Number: BC414706 Type of case: Unpaid Wages Type of proceeding: Court trial Judge: Hon. Richard L. Fruin Length of trial: 3 Days Date of Decision: December 14, 2010 Plaintiff: Cody Fogh Plaintiff’s Counsel: James H. Cordes and Steven M. Rubin Defendant: Los Angeles Film Schools, LLC, et al. Defendant’s Counsel: Dayton Parcells III and Lisa W. Lee Facts and Contentions: Plaintiff worked 40 to 45 hours per week as an Admissions Representative for Defendant Los Angeles Film Schools, LLC, a for-profit post-secondary film school, and was paid a salary with no overtime. Plaintiff contended he was entitled to unpaid overtime wages and premiums for missed meal and rest breaks. Defendant contended Plaintiff was exempt from the requirement to be paid overtime wages, that Plaintiff worked no overtime, and that Plaintiff was provided with all meal and rest breaks. Result: The Court found Plaintiff was not exempt and awarded $13,972.00 in compensation for unpaid overtime hours worked plus interest of $4,416.00 for a total judgment of $18,388. Plaintiff’s counsel moved for reasonable attorney’s fees and costs under Labor Code section 1194 and was awarded $88,000.00 plus a 1.1 multiplier plus $3,408.17 in costs for a total of $100,208.17. Each of Plaintiff’s counsel was awarded $490.00 per hour. Defendants filed a memorandum of costs related to certain dismissed claims and parties. Plaintiff’s motion to strike all costs was granted. Heavener v. Mueller Santa Barbara County Superior, Anacapa Division Case Number: Type of case: Type of proceeding: Judge: Length of trial: Length of deliberations: Date of Verdict or Decision: 1372236 Auto Jury trial Hon. Denise de Bellefeuille 5 days 2 hours December 6, 2011 30 Santa Barbara Lawyer Legal News Plaintiff: Plaintiff’s Counsel: Defendant: Defendant’s Counsel: Experts: Shirley Heavener Chad Prentice of Maho & Prentice Steven Mueller Charles Wessler of the Law Office of Gregory J. Lucett For Plaintiff: David Frecker, M.D. and James Kwako, M.D.; For Defendant: Hans Barthel, M.D. Overview of Case: On October 23, 2008, Plaintiff and a Volkswagen van were stopped. Defendant rear-ended the Volkswagen and pushed the Volkswagen into the Plaintiff’s vehicle. Plaintiff’s vehicle sustained $6,300.00 in property damage. Facts and Contentions: Plaintiff claimed that the accident caused her to suffer neck and back pain and resulted in post-traumatic fibromyalgia. Plaintiff also claimed that she worked for 5 months after the accident, but had to stop working because she developed post-traumatic fibromyalgia and has not been able to return since. Defendant admitted liability, but argued that Plaintiff’s post-traumatic fibromyalgia was not caused by the accident. Summary of Claimed Damages: Plaintiff suffered approximately $38,000.00 in past medical specials, claimed over $100,000.00 for future medical expenses, approximately $90,000.00 in past loss of earnings and $1,580,250 in future lost income. Result : 12-0. Plaintiff was awarded $31,000.00 for past medical expenses, $4,100.00 for past loss of earnings, and $30,000.00 for past general damages. The jury did not award any special or general damages for future medical expenses, loss of earnings or pain and suffering. The jury determined that the fibromyalgia was not caused by the automobile accident. Legal News Shipley, continued from page 29 Cy pres awards can be used to fund essential legal services for the poor. These funds can be used by legal aid organizations to fund specific programs or can be used to fund operating costs of legal aid organizations to ensure provision of urgently needed legal services to those in need. The Legal Aid Foundation of Santa Barbara County is actively seeking cy pres awards to help fund its ongoing programs. Established in 1959, LAFSBC provides high-quality legal services in order to ensure that low-income persons and seniors have access to the civil justice system in times of crisis—to secure safe, habitable shelter, adequate income, and protection from domestic violence and elder abuse. With offices in Santa Barbara, Santa Maria and Lompoc, LAFSBC has demonstrated such excellence in provision of legal services to low-income members of the community that it has been chosen as one of only seven legal aids to participate in the Sargent Shriver pilot project. Each year the Legal Aid Foundation of Santa Barbara assists over February 2012 5,000 people. The Chief Justice of California, the Honorable Tani Cantil-Sakauye has said that: “Especially in times of crisis, when services are cut, homes are taken and jobs are lost, the courts serve as the safety net for a civil society. Making good on the promise of equal access to justice in our state is not a challenge only for the courts, nor is it a challenge only for the bar. It is a challenge for all Californians.” Cy pres funds can help the most vulnerable among us. LAFSBC helps victims of domestic violence and elder abuse, and those who are facing loss of housing, family problems, or bankruptcy. If you are handling a class action case and there are residual funds, consider Legal Aid Foundation of Santa Barbara County as a recipient. A cy pres award to LAFSBC will ensure fulfillment of the promise of equal access to justice for all people of Santa Barbara. James Shipley is in private practice with Stockwell, Harris, Woolverton & Muehl, and serves as Vice-President of the Board of Directors of the Legal Aid Foundation of Santa Barbara County. 31 Legal Community The Legal Aid Foundation is pleased to make several exciting announcements. First, the Foundation’s Director of Litigation Yvonne Cudney has been appointed Project Manager of the Sargent Shriver Project. Alex Lambrous, one of Legal Aid’s longest serving attorneys, will take over as Director of Litigation. Kristine Mollenkopf is pleased to announce the opening of her own office, Mollenkopf Law Group, in Santa Maria, California. Mollenkopf Law Group will continue to specialize in civil litigation, particularly in the areas of business, construction, real estate contracts, and government entity representation. Mollenkopf Law Group is located at 1862 Kristine Mollenkopf So. Broadway, Suite. 203, Santa Maria, CA 93454; phone (805) 314-2378; fax (805) 314-2642; and email [email protected]. Finally, at Legal Aid Foundation’s Annual Campaign for Equal Access Fundraising Luncheon held on December 15, 2011, Cappello & Noel, LLP pledged $50,000 to Legal Aid Foundation in a five year pledge. This spearheads Legal Aid’s Champions of Justice, a multi-year giving society charged with helping establish the sustainability and long-term stability of the nearly 53-year old agency. Law firms Fell Marking, Abkin, Montgomery, Granet & Raney, LLP and Reicker Pfau Pyle & McRoy, LLP and attorneys Allan Ghitterman, D. William Wagner, Sherry Melchiorre, Amy Steinfeld, Penny Mathison and Lessie Nixon all rose to the challenge and pledged multi-year commitments to Champions of Justice. Hardin & Coffin LLP is pleased to announce that Lora Hemphill has been named Co-Chair of the Santa Barbara County Bar Civil Litigation Section. Ms. Hemphill joined Hardin & Coffin in 2003, and her practice involves a variety of civil litigation matters, including personal injury and construction defect cases, as well as representation of government Lora Hemphill entities. Ms. Hemphill is very involved in the Santa Barbara legal community, having served on the board of directors of Santa Barbara County Bar Association, Santa Barbara County Bar Foundation, Santa Barbara Women Lawyers, Santa Barbara Women Lawyers’ Foundation, and Courthouse Legacy Foundation. In 2006, she was recognized by the Pacific Coast Business Times as one of their “40 Under 40.” SB Legal Secretaries Association: SBLSA invites membership for 2012. Full membership is $45/yr; local membership $25/yr. For more details, visit www.sblegalnet.com. Santa Barbara Women Lawyers is pleased to announce it has updated its website. Individuals can now register and pay for events and renew their membership online. Visit www.sbwl.org. SB and Ventura Colleges of Law: The spring semester began January 3, 2012. More information can be found at http://www.collegesoflaw.edu. Santa Barbara Women Lawyers Foundation awarded five scholarships (with a combined value of $8,500) at the end of 2011: two to high school students with the best essay on cyber bullying, and three to local law students. Additionally, Brandi Redman will join the staff of Legal Aid in the Santa Barbara office as Senior Staff Attorney after serving as Supervising Attorney of the Legal Resource Center. Ron Perry will take her place as Supervising Attorney of the Legal Resource Center. 32 Santa Barbara Lawyer Legal Community On January 21-22, 2012, the historic Santa Barbara Courthouse saw its first college mock trial tournament, the Paradise Invitational. Participants from universities including UC Berkeley, UCLA, UCSB, UCSD, UC Irvine, Claremont McKenna, Cal Poly SLO, Fresno State, and Arizona tried State v. Dawson, a DUI Murder case before local judges and attorneys. Students from Santa Barbara High School served as jurors. Tournament proceeds will help fund the Santa Barbara County High School mock trial winner’s trip to the State Championship. The tournament was co-hosted by UC Irvine Mock Trial and Danielle De Smeth, Esq. Special thanks to Paradise sponsor Hager & Dowling for its generous $1500 donation. At the time this article went to press, tournament sponsors included Eric Burrows, the Eagle Inn, the Best Western Pepper Tree Inn, Blueprint LSAT Preparation and the Law Office of Seana B. Thomas. The tournament would not have been possible without the support of Presiding Judge Brian Hill, Judge George Eskin, Ronn Carlentine and Linda Van der Wyk from the County of Santa Barbara, and the attorneys and judges who volunteered to score the rounds. William L. Gordon Chapter of the American Inns of Court is still accepting applications for 2012. The first meeting is February 1, 2011 at the University Club, 1332 Santa Barbara Street. Social Hour begins at 5:30, Buffet Dinner at 6:15 and Program at 7:00. For more information or to request an application please contact Cheryl Johnson at [email protected] or Brandy Bartosh at [email protected]. For the first time, the Inn is letting nine students apply for membership, the fee is $200 per student. Applications should be emailed to Cheryl Johnson. Each student will be seated at a table during presentations with one judge, seven attorneys and one other student who was appointed as a member through their school. Legal Aid: Save the date for 8th Annual Taste for Justice and 2nd Annual Chili Cook off in Santa Maria at a WWII Airport Hangar on March 3, 2012 from 1-5pm. Tickets are $50 and include tastings to wine, beer, and food, and a live and silent auction. All proceeds from the event benefit Legal Aid Foundation’s direct services in North County. February 2012 The Paradise Invitational draws some of the best and brightest law students from university mock trial teams. The Northern Santa Barbara County Bar Association has named former Vice President Aaron Smith as President. General Bar Lunch Meetings will continue to be held on the third Thursday of each month at Noon at Testa’s Bistro, 113 South College Drive, Santa Maria. The cost is $15 per person for members, $20 for non-members. More information can be found at http://www.nsbbar.org. Bill Mahan is the new President of Santa Barbara Courthouse Legacy Foundation, following in the footsteps of Tom Thomas. If you have news to report—e.g. a new practice, a new hire or promotion, an appointment, upcoming projects/initiatives by local associations, an upcoming event, engagement, marriage, a birth in the family, etc.—the Santa Barbara Lawyer editorial board invites you to “Make a Motion!” Send one to two paragraphs for consideration by the editorial deadline to our Motions editor, Mike Pasternak at [email protected]. If you submit an accompanying photograph, please ensure that the JPEG or TIFF file has a minimum resolution of 300 dpi. Please note that the Santa Barbara Lawyer editorial board retains discretion to publish or not publish any submission as well as to edit submissions. 33 February 2012 Calendar SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY 1 2 34 Family Law Section Morning Coffee 5 6 7 8 Santa Barbara Lawyer Submission Deadline 9 10 11 Civil Litigation, IP and In-House Counsel Sections MCLE Luncheon 12131415161718 19202122232425 Presidents’ Day Courts Closed 26 27 28 29 March 1 2 3 2012 SBCBA SECTION HEADS Alternative Dispute Resolution David C. Peterson 441-5884 [email protected] Bench & Bar Relations Herb Fox [email protected] Civil Litigation Naomi Dewey [email protected] Laura Hemphill [email protected] Client Relations Thomas Hinshaw [email protected] Scott Campbell [email protected] Debtor/Creditor Section Heads Needed 899-4777 963-3301 963-3301 729-2526 963-9721 Elder Law Denise Platt [email protected] Jody Moore [email protected] Employment Law Kimberly Cole [email protected] Estate Planning/Probate Brooke Cleary [email protected] David Graff [email protected] Family Law Jennifer Drury [email protected] Vanessa Kirker [email protected] 34 604-7130 604-7130 845-4581 965-1329 963-8611 879-7523 964-5105 Santa Barbara Lawyer In-House Counsel & Corporate Law Betty L. Jeppesen 963 -8621 [email protected] Intellectual Property/Tech. Business Christine L. Kopitzke 845-3434 [email protected] Real Property/Land Use Bret Stone [email protected] Taxation Peter Muzinich [email protected] Joshua P. Rabinowitz [email protected] 898-9700 963-9721 963-0755 Classifieds OFFICE SPACE AVAILABLE We have an extra office at 3324 State Street, Suites O and N (across State Street from Loreto Plaza). New subtenant may choose from either of the following: 1) 250 ft 2 offered at $750.00 per month (plus service costs as identified, below) with private Suite designation, parking space, bathroom and entrance; or 2) 125 ft 2 offered $360 per month plus service costs. Rental cost includes: (1) High speed internet; (2) VOIP phone system with dedicated phone line, private phone number with virtual office capabilities; (3) use of new Kyocera copy machine (per copy charges are extra); and (4) bi-weekly cleaning service. Either office may be fully furnished for additional charge. Please call Bob Hurlbett, 805-963-9111, ext. 2. Civil Litigation, IP and In-House Counsel Sections Manage Your Online Presence to Grow Your Practice *** Includes Free Copy of “How to Turn Clicks into Clients” *** Date: Thursday, February 9, 2012 Time: 12-1:15 p.m. Location: Santa Barbara College of Law Topic: Discover how to grow your online professional reputation the right way and learn how to comply with the stringent rules governing an attorney’s online presence. This educational and entertaining course will help you transform your online presence so you are effectively connecting with peers, attracting new clients, and avoiding pitfalls that can cost you time, money, and your practice. • Learn what to include in a firm website, and how to properly represent your firm on local search directories. • Discover what makes an effective law firm website strategy from blogging to social media. • Review the rules that Google has in place avoiding costly mistakes and learn some general guidelines regarding your online presence. Course Content: • Creating and Updating Your Firm Website – What you can and can’t do • Local Online Directory Listing - The Good, the Bad, and the Unethical • Five myths about attracting more clients online Presenters: Ed Rush, Co-Author of “How to Turn Clicks into Clients – The Ultimate Law Firm Guide To Getting Clients Online, a former Marine fighter pilot and flight instructor for the F-18 Hornet. Jabez LeBret: Co-Author of How to Turn Clicks into Clients, considered a leading authority on monetizing social media. Cost: SBCBA Members: $30, Non-Members $40 MCLE: One hour MCLE credit RSVP: Naomi Dewey, Civil Litigation Co-Chair, at [email protected] by February 3, 2012. Please make checks payable to SBCBA, and mail c/o Naomi Dewey, Hardin & Coffin LLP, 1531 Chapala, Suite 1, Santa Barbara, CA 93101. February 2012 35 Prsrt Std Santa Barbara Lawyer U.S. Postage Paid Santa Barbara, CA The Santa Barbara County Bar Association 15 W. Carrillo St., Suite 106 Santa Barbara, CA 93101 Permit #734 Change Service Requested For your Real Estate needs, choose carefully and choose experience! “I’ve been a Lawyer for 18 years and a Real Estate Broker with my own company for 15 years.” Gary Goldberg Real Estate Broker • Licensed Attorney UC Hastings College of Law • Order of the Coif DRE License # 01172139 “As a real estate company owner beginning my 15th year of serving Santa Barbara, I look forward to helping you buy or sell real estate property, and as always, personally dedicating myself to striving for excellence in every transaction. My expertise and detailed knowledge of properties includes Montecito, Hope Ranch, Carpinteria, Summerland, Goleta, Santa Barbara, and all the surrounding beach communities.” Over $400,000,000 Sold Since January 1, 2000 Among the top 10 agents in Santa Barbara (per MLS Statistics in Gross Sales Volume) • Intensive Marketing Plan for each listing • Member, Santa Barbara, Ventura, and Santa Ynez Real Estate Boards • Expert witness in Real Estate and Divorce Matters, and Estate Planning • Licensed Attorney, Professor Real Estate Laws Course at SBCC 1086 Coast Village Road, Santa Barbara, California 93108 • Office 805 969-1258 • Cell 805 455-8910 To view my listings visit www.garygoldberg.net • Email [email protected] 36 Santa Barbara Lawyer
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