Lawyer Santa Barbara Summer Solstice Issue
Santa Barbara Official Publication of the Santa Barbara County Bar Association June 2013 • Issue 489 Lawyer Summer Solstice Issue 2 Santa Barbara Lawyer June 2013 3 Santa Barbara County Bar Association www.sblaw.org A Publication of the Santa Barbara County Bar Association 2013 Officers and Directors Donna Lewis President 789 N Ontare Rd Santa Barbara, CA 93105 T: 682-4090; F: 682-4290 [email protected] Michael Denver Hollister & Brace P O Box 630 Santa Barbara, CA 93102 T: 963-6711; F: 965-0329 [email protected] Scott Campbell President Elect Rogers, Sheffield & Campbell, LLP 427 E. Carrillo Street Santa Barbara, CA 93121-2257 T: 963-9721; F: 966-3715 [email protected] Danielle De Smeth Bamieh & Erickson 692 E. Thompson Blvd Ventura, CA 93001 T: 643-5555 [email protected] Matthew Clarke Secretary Christman, Kelley & Clarke 1334 Anacapa Street, Suite B Santa Barbara, CA 93101 T: 884-9922; F: 866-611-9582 [email protected] Naomi Dewey Chief Financial Officer Buynak, Fauver, Archbald & Spray 820 State Street 4th Floor Santa Barbara CA 93101 T: 966-7422 [email protected] Catherine Swysen Past President Sanger, Swysen & Dunkle 125 E De La Guerra St Ste 102 Santa Barbara, CA 93101 T: 962-4887; F: 963-7311 [email protected] Emily Allen Legal Aid Foundation 301 E. Canon Perdido Street Santa Barbara, CA 93101 T: 892-2480 [email protected] Katy Graham Senior Research Attorney 2nd District Court of Appeal, Div. 6 200 E Santa Clara St Ventura, CA 93001 T: 641-4753 [email protected] James Griffith Law Offices of James P. Griffith 1129 State St Ste 30 Santa Barbara, CA 93101 T: 308-0178; F: 563-9141 [email protected] Lauren Joyce Attorney at Law 209 E Anapamu St Santa Barbara, CA 93101 T: 705-8022 [email protected] Brandi Redman Attorney & Counselor at Law 1021 Laguna St. Apt 8 Santa Barbara, CA 93101 T: 252-8418; [email protected] Santa Barbara Lawyer Angela Roach Santa Barbara Lawyer University of California, Santa Barbara Employee & Labor Relations 3101 SAASB Santa Barbara, CA 93106-3160 T: 893-7302 [email protected] James Sweeney Allen & Kimbell, LLP 317 E. Carrillo St Santa Barbara, CA 93101-1488 T: 963-8611; F: 962-1940 [email protected] Shelley Vail Santa Barbara Lawyer University of California, Santa Barbara Employee & Labor Relations 3101 SAASB Santa Barbara, CA 93106-3160 T: 893-4663 [email protected] LAUREN WIDEMAN Price, Postel & Parma, LLP 200 E. Carrillo St., Ste. 400 Santa Barbara, CA 93101 T: 962-0011 [email protected] Lida Sideris Executive Director 15 W. Carrillo Street, Ste. 106 Santa Barbara, CA 93101 T: 569-5511; F: 569-2888 [email protected] ©2013 Santa Barbara County Bar Association CONTRIBUTING WRITERS Marcus Bird Matthew Clarke Lynn Goebel Jacqueline Hall Jane Lindsey Susan H. McCollum Gregory McMurray Robert Sanger Alex Yarbrough EDITOR Angela D. Roach ASSISTANT EDITORS Lida Sideris Shelley Vail MOTIONS EDITOR Michael Pasternak VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PROFILE EDITOR James P. Griffith PHOTO EDITOR Mike Lyons PRINT PRODUCTION Wilson Printing Submit all EDITORIAL matter to [email protected] with “submissIon” in the email subject line. Mission Statement Santa Barbara County Bar Association 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. 4 Santa Barbara Lawyer Submit all MOTIONS matter to Michael Pasternak at [email protected]. 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 Official Publication of the Santa Barbara County Bar Association June 2013 • Issue 489 Articles Lawyer 31 This Month in Santa Barbara Lawyer History... 6 My Trip to El Salvador, By Lynn Goebel 7 My Vacation to See the Most Exciting Two Minutes in Sports, By Gregory McMurray 8 Traveling Colombia, By Matthew Clarke 11 Tax Planning From an International Perspective Part *, By Alec Yarbrough 14 Past Presidents’ Luncheon 15 An Alternate View of Summer, By Jane Lindsey 18 If You See Something, Say Something, By Susan H. McCollum 20 Heroes for Justice 6th Annual Awards - May 10, 2013 23 The National Academy of Sciences and Juvenile Justice, By Robert Sanger 28 Title Insurance, By Marcus Bird 30 Pro Bono Profile: Randall Sutter and the Bankruptcy Self-Help Clinic, By Jacqueline Hall Letter from the Editor Dear SBL readers, Welcome to the Summer Solstice Issue of Santa Barbara Lawyer! Summer Solstice, on June 21st, is not only the longest day of the year, but the word “solstice” also means, “a culminating point” or a “turning point.” Thus, our June issue not only beckons the start of summer, but marks the mid-year turning point in the editorial year. Our goal this year is to bring you the highest quality publication through three measures. First, to cover timely events in our legal community. In this issue, you will find coverage of the County Bar Association’s May 1st Past Presidents’ Lunch and Legal Aid’s May 10th Heroes for Justice Event. You will also find an article about the new Bankruptcy Clinic. Second, we seek to include diverse topics in each issue. Fitting within our summer theme, this issue includes three interesting articles by local attorneys who took unique trips to El Salvador, Colombia, and the Kentucky Derby. Finally, we continue to introduce new features to the magazine. So far this year we have introduced a new column entitled “Review Pending” to report on the status of cases where Appellate review has been granted. We also instituted a new Pro Bono Column to report on pro bono June 2013 Sections 13 Review Pending 16 Legislation Pending 29Classifieds 33 Section Notice 34Motions 36 Verdicts and Decisions 38Calendar About the Cover: Participants in the Annual Solstice Parade in Santa Barbara. (Patricia Clarke photo) opportunities and developments in our community. In this issue, you will find the newest addition entitled “Legislation Pending” to report on legislation pending before the California Legislature. The column will focus on pending legislation that have garnered significant public interest—like this month’s focus on Angela D. Roach firearm legislation. With these measures in mind, we have begun working on the July issue, which will focus on constitutional law issues. We will remain focused on the financial crisis faced by our Courts and how this limits public access to the Courts, and ultimately to justice. We will continue to strive to bring you a high quality publication this year. Thank you to those who contribute content to the magazine, which enriches the publication for all. Also, thank you to the 2013 editorial team who work tirelessly to ensure each issue reaches our reader. If you have any feedback, please email at santabarbaralawyer@ yahoo.com with “FEEDBACK” in the email subject line. Happy Reading, Angela D. Roach, Editor-in-Chief 5 SBCBA Vacations My Trip to El Salvador By Lynn Goebel “Habitat for Humanity believes that every man, woman, and child should have a decent, safe[,] and affordable place to live. We build and repair houses all over the world using volunteer labor and donations.” —from the Habitat for Humanity website O n March 8, 2013, I flew from Santa Barbara to San Salvador, El Salvador to begin my Habitat for Humanity adventure. I went as part of a group called “Thrivent Builds,” a partnership between Habitat for Humanity and Thrivent Financial for Lutherans. [Thrivent Financial for Lutherans is a faith-based membership organization. In April 1972, when I was only one month old, my parents obtained a whole life insurance policy for me. Ergo, at “age 0,” I became a member of Thrivent Financial (then called Aid Association for Lutherans).] Many hours and many flights later (Santa Barbara to San Francisco to Houston to San Salvador), I arrived at a still-muggy San Salvador airport. I made contact with the cab driver that had been contracted to pick me up and take me to the group hotel. (I had arrived the day before the rest of my group.) The guy with the “Habitat for Humanity” sign was a dead giveaway. In my pathetic Spanish, I managed to introduce myself and get underway in his cab. To the wrong hotel. At 10:30 p.m. Where women are advised to not go outside unless they are in groups of no fewer than three people, with at least one male. Happily, there was a vacancy. And so it began. I made it to the correct hotel the next day and my group journeyed together to Achuachapan in western El Salvador where we were greeted by the masons (crew foreman) who would lead us in our task to build a home, literally from the ground up. Our group was comprised of sixteen total individuals from all walks of life. There was a farmer from Iowa, a pastor from South Dakota, and a filmmaker who really had no permanent residence. I was deemed the most fluent in Spanish. Dangerous. We dug foundations with only shovels, one pick, and one wheelbarrow. We connected rebar structures with wire using wire cutters that had not had a good sharpening since the Earth was still cooling. We mixed concrete with shovels in the middle of the worksite directly on the dirt. Continued on page 35 6 Santa Barbara Lawyer SBCBA Vacations My Vacation to See the Most Exciting Two Minutes in Sports By Gregory McMurray A fter a red-eye flight and only about one hour of restful airplane sleep, we arrived in Kentucky on early Thursday morning. We spent the balance of the day exploring Lexington and that evening, we stumbled upon a free block party in downtown Lexington. The party featured live music, food, and drinks. We were informed by the locals that it was not a special occasion honoring the Derby but was a customary, weekly Thursday night block party that happens in the Spring. Friday was a day for the ladies. At the Kentucky Oaks, the fillies take center stage and the color pink is featured in their honor. The weather cooperated and provided Churchill Downs with the perfect setting. The patrons were well-dressed and enthusiastic, and the elegant hats were plentiful. The drink of the day was called the “Lilly” which was a Grey Goose vodka infused fruit drink with fresh berries. It was delightful. “Lillies for the fillies” was often shouted from the concession stands. The best threeyear-old fillies in the world were featured in the main race of the day. It was a wonderful race that gave us a taste of what to expect for the big race day. Saturday was the day of the Derby. Unfortunately, rain fell steadily all afternoon during the undercard. The downpour sent some patrons retreating to the grandstand for cover and had many ladies scrambling to cover their fancy Derby hats with plastic bags. The seersuckers, spring dresses, and elegant hats were replaced by ponchos and makeshift, homemade, plastic bag coverings. The drink of the day was the “Mint Julep” which embodies the spirit of Kentucky bourbon. The crowd was festive and jolly despite the weather. And, as if the horseracing gods were watching, right before the big race, the rain stopped and the sun began to peek from behind the clouds. This time, the best three-year-old thoroughbreds in the world took center stage. And the race did not disappoint. In front of a backdrop of 150,000 patrons at Churchill Downs, Orb splattered through the mud and rallied down the stretch to victory. He was clearly the fastest horse of the day and has a legitimate chance to win the triple-crown. It was an June 2013 exciting race that lived up to all of the expectations. Sunday was a day for relaxation and bourbon tasting. We went to Four Roses distillery, explored Louisville, and visited a recently built casino in Cincinnati named the “Horseshoe.” To our surprise, gambling was legalized in Ohio a few years ago. On Monday, we boarded the airplane and flew back to beautiful Santa Barbara. And with us, we carry the memory of the most exciting two minutes in sports. 7 SBCBA Vacations Traveling Colombia By Matthew Clarke W hen people hear the word Colombia, many think of illegal drugs, Pablo Escobar, or maybe guerrilla factions like FARC EP (www.farc-ep. co). The Colombia of today has changed and progressed dramatically since the 1980’s. Travel Warnings issued by the U.S. Department of State do not instill a sense of security, but this author has not felt threatened or fearful from anything other than the aggressive drivers on Colombian roads. The countryside is typically a deep green with pas- tures, trees, and grazing livestock. Structures are frequently made of concrete block covered in white stucco with red tile roofs, familiar to all of us in Santa Barbara. While a rental car is recommended for ease of access, driving in Colombia is stressful. Road conditions are variable but the views from the car are consistently beautiful. Relaxed cruising at 55 mph on smooth blacktop can immediately and inexplicably transition to giant potholes that threaten to tear off a wheel or speed bumps like you’ve never seen before. Locals call these massive speed bumps “sleeping policemen.” Once you leave town, other road hazards include slow moving motorcycles with 3-4 passengers, dogs, horses, donkeys, pigs, and other creatures. Colombia has enjoyed positive press lately, e.g., “House Hunters International.” Another example is Anthony Bourdain’s hit show “Parts Unknown” recently shown on CNN. Bourdain samples food and drink, and talks politics with locals from several areas. He flies in a 70-year-old DC-3 with radial engines into a remote Amazon village known for coca production. He asks the mayor of said village: “Is it Matthew Clarke balancing a fruit basket on his head with some locals. Aeriel views of Colombia 8 Santa Barbara Lawyer SBCBA Vacations safe here?” Clearly, Bourdain did not read the Department of State warnings. But, do not worry. Colombia has nice, clean international airports with free Wi-Fi in cities like Bogota, Barranquilla, Cartagena, Medellin and Cali. Airfare to Colombia is reasonable but flights are indirect. Example: roundtrip airfare from LAX to Bogota several months in advance will cost about $550-650 per person. Domestic flights in modern aircraft are cheaper and quicker than a bus ride, but you don’t get to see the countryside. Like many South American countries, Colombia offers three distinct ecosystems: Beautiful tropical beaches, Andean mountains, and the Amazon jungle. Depending on your arrival city, you can experience the “Eternal Summer” of Medellin or the tourist friendly Cartagena. You will feel the 8,600 feet of altitude in Bogota, but you’ll get used to it in 24 hours. This author prefers the northern coast of Colombia to the west of Cartagena, north of Monteria. These warm water Caribbean beaches are undiscovered by foreign tourists but developed just enough to provide the absolute necessities: shady palapas made of palm fronds, freshly squeezed juices, cold beers, ceviche, and fried plantains. Sit with your toes in the water and forget about all of your clients’ legal problems for a couple of weeks. Focused on Franchise Law KURTZ LAW GROUP A Professional Corporation Franchise Law First and Foremost TM Barry Kurtz Certified Specialist, Franchise & Distribution Law The State Bar of California Board of Legal Specialization Candice L. Lee Bryan H. Clements Mark Melton 831 State Street, Suite 230 Santa Barbara, California 93101 T 805-965-9939 21650 Oxnard Street, Suite 500 Woodland Hills, California 91367 T 818-827-9229 F 818-986-4474 www.KurtzFranchiseLaw.com June 2013 9 10 Santa Barbara Lawyer Legal News Tax Planning From an International Perspective - Part I By Alec Yarbrough S pecial consideration is required when any client with foreign citizenship, non-U.S. situate property, or foreign accounts walks through the door. All too often lawyers with such clients fail to exercise the prudence required in undertaking such representation. In many cases, practitioners treat the situation the same as any other wholly domestic concern, not taking into account the special rules and applicable treaties required to provide adequate representation. In light of this problem, the following article presents a broad overview of common tax and financial planning issues that arise when representing clients with international interests. While this article is not meant to provide all the tools necessary to deal with such problems, the aim is to help legal professionals spot foreign issues and avoid otherwise common pitfalls. Determining U.S. Person Status for Income Tax Purposes One of the initial questions practitioners should ask a client after he or she walks in the door is if he or she is a U.S. citizen. If the client answers in the affirmative, then they are a U.S. person for tax purposes. However, if the client is not a U.S. citizen, they may still be a U.S. resident subject to some of the same taxes as a U.S. citizen. The definition of a U.S. resident for income tax purposes is different from a U.S. resident for estate and gift tax purposes. For income tax purposes, U.S. residency is determined under an objective, bright-line test. A non-citizen is considered a U.S. resident for income tax purposes if they: (1) are a lawful permanent resident of the U.S. at any time during such calendar year, (2) meet the substantial presence test, or (3) make an election to be treated as a U.S. resident. I.R.C. § 7701(b)(1). An individual meets the substantial presence test if he or she was present in the U.S. for at least 31 days during the current calendar year and the sum of the days on which such individual was present in the U.S. during the current year and the two preceding years is greater than or equal to 183 days, after taking the applicable multiplier into account for June 2013 the two preceding years. I.R.C. § 7701(b)(3). The number of days an individual spends in the U.S. during the second preceding year is multiplied by 1/6 and the multiplier for the first preceding year is 1/3. I.R.C. § 7701(b)(3). To illustrate, if an individual was in the U.S. for 210 days in the year 2010, 180 days in 2011, and 20 days in 2012, the 210 days in 2010 are multiplied by 1/6 so 35 days from the second preceding year would count for determining residency. The 180 days in 2011 are multiplied by 1/3 for a total of 60 days for the first preceding year. These numbers are then added together with the whole 20 days for the current 2012 year. Thus, there would be a total of 115 days. Since this is under the 183 days threshold, such a person would not be a U.S. resident for income tax purposes under the substantial presence test. A person who is not a citizen and not a resident of the U.S. is considered a non-resident alien (“NRA”) and subject to different taxation rules. For purposes of this article, a U.S. citizen or U.S. resident, as determined under the above tests, will be referred to as a U.S. person. Income Taxation U.S. persons are required to report income from all sources within and outside of the U.S. Thus, any U.S. person must report income, even if such income is earned while outside of the U.S. or through a non-U.S. business. However, if a U.S. citizen is taxed by a foreign country on income the U.S. has also taxed, the U.S. will offer a credit for income tax paid to the foreign country. I.R.C. § 901(b). Unlike U.S. persons, NRA’s are only taxed on their U.S. source income. I.R.C. §§ 871, 872. However, certain items are specifically excluded in calculating an NRA’s U.S. source income. For example, compensation for personal services performed by an NRA temporarily present in the U.S. for 90 days or less will not be subject to U.S. income taxes, so long as such compensation does not exceed $3,000. I.R.C. § 861(a)(3). An NRA’s U.S. source income and income that is effectively connected with the conduct of a trade or business within the U.S. is taxed at the same rates applicable to U.S. persons. I.R.C. § 871(b). However, NRA’s are taxed at a flat rate of 30% on income received from sources within the U.S. that is not effectively connected with any U.S. trade or business. I.R.C. § 871(b). Most capital gains realized by non-U.S. citizens are only taxable if such non-U.S. citizen was present in the taxable year(s) the gains were realized and recognized for 183 days or more. I.R.C. § 871(a)(2); Treas. Reg. § 1.871-7(d). An NRA may also be offered a tax credit similar to that available to U.S. persons, but it is limited to the amount of foreign taxes imposed on income 11 Legal News effectively connected with U.S. trade or business. I.R.C. § 906(a). Reporting Offshore Assets Recently, income and asset reporting has been in the spotlight due to developments in U.S. tax law such as the Report of Foreign Bank and Financial Accounts (commonly known as “FBAR”) filing requirements, the Foreign Account Tax Compliance Act (“FATCA”), and the Offshore Voluntary Disclosure Program (“OVDP”). It is important to establish what foreign assets or accounts a client has and then determine what disclosure, if any, is proper. While certain NRA’s may have to file Form 8938 (Statement of Specified Foreign Financial Assets) under FATCA, only U.S. persons are under the purview of the FBAR requirements. A U.S. person is required to file a FBAR statement, separate from their income tax returns, if they have a financial interest in or signature authority over foreign financial accounts with an aggregate value which exceeds $10,000 at any time during the calendar year. Under FATCA, individuals are only required to file Form 8938 with their income tax return if their foreign financial assets are valued at $50,000 or more on the last day of the tax year, or $75,000 or more at any time during the tax year. Thus, the FATCA and FBAR rules were enacted to keep taxpayers in compliance with the current tax laws. By contrast, the purpose of OVDP is to bring taxpayers who have used undisclosed foreign accounts to evade tax into compliance with U.S. tax laws. The OVDP may allow a client to become compliant while avoiding greater civil penalties and minimizing the risk of criminal prosecution. Foreign Investment in United States Real Property In 1980, the Foreign Investment in Real Property Tax Act (“FIRPTA”) was enacted, in part, due to a perception that U.S. real estate prices were being driven up by allowing NRA’s to be exempt from U.S. tax on the sale of U.S. real property interests (“USRPI’s”). Under FIRPTA, gains associated with the disposition of USRPIs by a foreign seller are taxed as if the foreign seller were engaged in a trade or business within the U.S. I.R.C. § 897. Unlike the rules concerning most other capital gains, there is no requirement that the NRA be present in the U.S. for any period of time during the taxable year for such a disposition to be subject to taxation. In addition, the USRPI buyer may be required to withhold 10% of the gross amount realized from the sale, even if the NRA is facing a loss. I.R.C. § 1445. Other issues may arise when an NRA owns and receives rents from USRPI’s. When an NRA receives U.S. source rents that are not effectively connected with a U.S. trade or business, such rents may be subject to a 30% withholding tax. I.R.C. § 1441. However, if an NRA taxpayer makes an election under I.R.C. § 871(d) to treat USRPI income as effectively connected to a U.S. trade or business, that income will be subject to the regular graduated rates after allocating the proper deductions in determining the tax base. Even if real property is held in an entity, a withholding tax may apply to interest held by or allocable to any nonresident alien. See I.R.C. §§ 1441, 1445, 1446. When being engaged by a client, citizenship, and residency is almost always pertinent. Practitioners need to have the ability to spot different issues when dealing with clients who are not U.S. citizens or not U.S. residents. Once such issues are spotted, it is important to alert the client of any adverse tax implications and possible solutions. Treating an international client the same as any other may have detrimental consequences. Next month’s article will discuss such consequences in the estate planning context. Alec C. Yarbrough, J.D., LL.M., is an attorney specializing in international tax and estate planning matters with Ambrecht & Associates. 12 Santa Barbara Lawyer Legal News ate the impacts of a project only against projected future conditions? Review Pending Highlighting Public Information About Cases of Local Interest Under Review Case: Neighbors for Smart Rail v. Exposition Metroline Construction Authority (Los Angeles Metropolitan Transportation) (S202828); Previously published at 205 Cal.App.4th 552. California Supreme Court Status: On May 7, 2013, the California Supreme Court will hear oral argument in San Francisco at 9:30 a.m. Issue: The California Supreme Court has identified the following issue: Under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.), is a public agency required to evaluate a project’s potential traffic and other impacts using a baseline consisting of the existing physical conditions in the affected area during the period of environmental review, or may an agency elect to evalu- Case: Wisdom v. Accentcare (S200128); Sacramento Superior Court Case No. 20090063028; Previously published at 212 Cal.App.4th 221. California Supreme Court Status: Fully Briefed. On March 20, 2013, the Court issued a “Grant and Hold” order in Baltazar v. Forever 21 (S208345), which presents the same issue. Issues: The California Supreme Court has identified the following issue: Is an arbitration clause in an employment application that provides “I agree to submit to binding arbitration all disputes and claims arising out of the submission of this application” unenforceable as substantively unconscionable for lack of mutuality, or does the language create a mutual agreement to arbitrate all such disputes? (See Roman v. Superior Court (2009) 172 Cal.App.4th 1462.) Who Deserves Recognition? A Call for Nominations Are you, or someone you know, a selfless contributor to our community and our local court system? The Santa Barbara County Bar calls for nominations for 2013 awards in the following four categories. Please do not allow us to overlook worthy candidates. Award Recipient type Criteria to be Honored Pro Bono Award Attorney Has donated at least 50 hours of direct legal services to low income persons without expectation of remuneration during the previous calendar year. John T. Rickard Judicial Service Award Judge Outstanding contributions to the judiciary and/or the local court system Richard Abbe Humanitarian Award Attorney or judge Life, leadership and conduct that exemplify humanitarian principles Frank Crandall Community Service Award Law firm Facilitating pro bono services to community non-profit organizations). Factors to consider: services benefiting low-income persons; community projects’ leadership; nature and quality of work and hours per attorney; percent of firm attorneys involved in pro bono work; existence of a policy encouraging pro bono activity. Submit your nominations to [email protected] by July 15, 2013. Please include specific facts that support each criterion June 2013 13 1957 past president James DeLoreto, Donna Lewis, 1974 past pres. Hon. William Gordon (ret.) Julie Lawrence, Catherine Swysen, Sue McCollum, Tim Metzinger, Hon. William Gordon Andrea Hurd, Joe Howell, Paul Schonhauer, Lauren Joyce Hon. Pauline Maxwell, Hon. Tom Anderle, Elizabeth Diaz, Melissa Fassett, Alicia Journey Past Presidents’ Luncheon Michelle Roberson, Hon. Pauline Maxwell, Sue McCollum, Hon. Jean Dandona Scott Campbell, Hon. Harry Loberg (ret.), Alicia Journey - (top row); Betty L. Jeppesen, April Lavigne (bottom row) Hon. Kip Anderson, Mike Lyons, Hon. Frank Ochoa 14 Santa Barbara Lawyer Legal News An Alternate View of Summer By Jane Lindsey, Foodbank of Santa Barbara County S ummer for children should include summer camps, barbeques, and pool parties. This is not a reality for many children in our community. In fact, many children in Santa Barbara County do not have access to healthy meals once school is out. Nearly 25,000 kids countywide currently receive a free or reduced school meal every school day. But when school is out, 84% of our local children do not get any type of meal assistance during the summer—a time of critical brain and muscle development. Instead, these kids either go hungry or load up on inexpensive, highly processed, and calorie-dense food. This is where the critical work of the Foodbank of Santa Barbara County comes in. Taking advantage of Federal reimbursement grants, for the third year in a row, the Foodbank is launching its most ambitious and far-reaching program, Picnic in the Park. Last year the Foodbank successfully served more than 27,000 lunches throughout our county. This year our goal is to serve 35,000 lunches during the summer months. Picnic in the Park will feed more than 700 kids every weekday while school is out countywide. The program strategically operates in the lowest income areas that do not feature other non-profit food distributions. Community volunteers will manage and support individual sites, which Who says physical activity can’t be fun? A participant at the Foodbank of Santa Barbara County’s summer feeding program Picnic in the Park pedals fast to make a cool treat on the Foodbank’s famous bike blender. are open to all children ages 1-18. Volunteers will help hand out fresh prepared lunches, as well as engage kids with food literacy and fun physical activity. How can you help? Support the Picnic in the Park program through the Food from the Bar, a drive sponsored by the legal community during the month of July. Donations can be made and more information can be found at: www. foodbanksbc.org/foodfromthebar.html. Together we can improve the health and lives of children in our community this summer. Kids line up to receive their free lunch at the Foodbank of Santa Barbara County’s Picnic in the Park program at Grogan Park in Santa Maria. Fun games and activities are organized by volunteers, and kids bring their friends to enjoy a “picnic in the park”. June 2013 15 Legal News idle firearms. The bill also would make it illegal to loan a handgun to anyone not registered as its owner. The Senate Appropriations Committee has scheduled a third hearing for May 21, 2013. Legislation Pending: California Firearm Legislation A t least 30 new bills have been introduced in the California Legislature related to the sale and use of firearms. A partial list of pending firearm legislation is included below. Senate Bill 47. Limit on Magazine Rounds. This bill would prohibit the use of the “bullet button” and other devices that allow for easily changeable magazines on assault weapons. Such weapons would only be allowed to have ammunition magazines holding 10 or fewer rounds, which could not be changed without taking the weapon apart; essentially, bullets could only be loaded one-by-one from the top of the gun. The Senate Appropriations Committee has scheduled a hearing for May 23, 2013. Assembly Bill 48. Purchases of Ammunition. This bill would require ammunition sellers to be licensed; ammunition purchasers to show identification; ammunition sellers to report all sales to the state Justice Department; and the Justice Department to create a registry of ammunition purchases, which would be available to all law enforcement agencies, as well as to notify law enforcement of largequantity purchases. The bill also would ban kits that convert legal ammunition feeding devices into high-capacity magazines.The Assembly Appropriations Committee has scheduled a hearing for May 24, 2013. Senate Bill 53. Background Checks. This bill would require anyone buying ammunition to first pass a background check and receive a one-year permit — for an estimated $50 fee — from the state Justice Department. The Senate Appropriations Committee has scheduled a hearing for May 23, 2013. Senate Bill 108. Storage. This bill would require that all guns be properly stored with a trigger lock or in a lock box at a residence when the owner is not present; current law requires only that gun owners also own a trigger lock or lock box, but does not require such devices be used on 16 Senate Bill 127. Mentally Disordered Persons. This bill would permanently prohibit gun ownership for anyone who has been judged by a court to be a danger to others due to mental illness or has been judged a mentally disordered sex offender; courts could no longer issue certificates allowing gun ownership for such people after treatment. This bill is in the Assembly and was read for the first time on May 20, 2013. Senate Bill 140. Gun Confiscation. This bill lets state Justice Department use a $24 million surplus from its background-check system to beef up use of the Armed Prohibited Persons System (APPS) program which identifies and confiscates handguns and assault weapons from those no longer legally allowed to own them due to criminal convictions, mental illness, or protective orders. Governor Brown signed into law on May 1, 2013. Assembly Bill 169. State-Approved Roster. This bill would prohibit people who are allowed to buy handguns designated as unsafe by the state Justice Department from selling or transferring those handguns to others who are not allowed to have them. The Senate Public Safety Committee has scheduled a hearing for June 4, 2013 Assembly Bill 170. Sale of Weapons. This bill would limit the possession and use of registered assault weapons or machine guns to individuals only. Current law allows both individuals and organizations apply for permits, even if organization members might not have passed background checks. Assembly Bill 187. Ammunition Tax. This bill would impose a 10 percent tax on all ammunition sold in the state, with the revenue directed to a fund for crime-prevention efforts in the state’s high-crime areas. On May 13th the Committee on Revenue and Taxation passed the bill and re-referred it to the Committee on Appropriations. Assembly Bill 202. School Marshal. This bill would let school districts, county education offices, and charter schools pay for training for any school employee who is qualified to be trained and willing to carry a concealed firearm as a “school marshal.” The bill also would protect those employees’ anonymity by exempting their concealed-carry Santa Barbara Lawyer Legal News permit information from public release by law enforcement. The Assembly Education Committee failed to pass the bill on April 17, 2013. Assembly Bill 231. Storage and Child Access. This bill would expand the law for Criminal Storage of Firearms and child access. The Assembly has scheduled a third reading for May 21, 2013. Senate Bill 293. Smart Gun technology. This bill would ban the sale of conventional handguns and implements owner-authorized “smart-gun” technology. This would block the sale of any handgun that was not “coded” to the gun owner (so that nobody else could shoot it). The Senate Appropriations Committee has scheduled a hearing for May 23, 2013. Senate Bill 299. Notification of lost/stolen firearms. This bill would require that anyone whose firearm is lost or stolen must notify local law enforcement within 48 hours of the time they knew, or reasonably should have known, it was missing. If the firearm is later recovered, the local law enforcement agency must be notified within 48 hours of the recovery. The Senate has scheduled a third hearing for May 23, 2013. Senate Bill 363. Security. This bill would require gun owners living with someone prohibited from possessing firearms to keep any guns in the house locked up. This bill is in the Assembly and was read for the first time on May 16, 2013. Senate Bill 374. Self-loading rifles. This bill expands the definition of “assault weapons” to ban the future manufacture and sale of almost all semi-auto rifles with detachable magazines; those already owned would have to be registered. On April 16, the Senate Public Safety Committee approved the bill, SB 374. It now moves to the Senate Committee on Appropriation. The Senate Appropriations Committee has scheduled a hearing for May 23, 2013. Assembly Bill 538. Updates to Ownership Records. This bill would require the state to make updates in handgun, assault-weapon, and other firearm ownership records within five business days; exempt law enforcement officers from the law requiring a license to sell, lease, or transfer a firearm to a dealer, wholesaler, or manufacturer; require local, state and federal government agencies to report the destruction of its weapons; require firearms sellers to provide purchases with copies of the background-check transaction; and more. The bill is in the Senate and was June 2013 read for the first time on May 20, 2013. Assembly Bill 539. Notification. This bill would require the state to notify anyone who is temporarily prohibited from owning a firearm, whether due to a restraining order or probation or some other cause, that they can transfer their firearms to a licensed dealer for the duration of the prohibition. The Senate Appropriations Committee has scheduled a hearing for May 24, 2013. Senate Bill 567. Rifled Shotguns. This bill would ban “rifled bore” shotguns with revolving cylinders such as the Circuit Judge .410/.45; it is already illegal to use or possess “smooth bore” shotguns with revolving cylinders in California. The Senate Appropriations Committee has scheduled a hearing for May 23, 2013. Assembly Bill 740. Prohibitions on Firearm Ownership Expanded. This bill would lengthen the list of crimes that bar a convict from owning a firearm for 10 years, adding offenses such as illegally buying or selling firearms or ammunition; interfering with public officials or first responders; possessing ammunition when prohibited from possessing firearms; carrying ammunition on school grounds; and others. The bill also would tighten the number of sales, leases or transfers of firearms a person could do in a year without a license. The Assembly Appropriations Committee has scheduled a hearing for May 24, 2013. Senate Bill 755. Prohibitions on Firearm Ownership Expanded. This bill would expand the list of misdemeanors for which convictions result in a prohibition from firearm ownership; make it a felony to possess a gun after two or more convictions within three years for crimes committed while using alcohol or drugs; prohibits firearms ownership by anyone ordered by a court to undergo assisted outpatient treatment for mental illness; and more. The Senate Appropriations Committee has scheduled a hearing for May 23, 2013. Assembly Bill 760. Sales Tax on Ammunition. This bill would impose a new 5 percent sales tax on each bullet sold in California, dedicating the revenue to an existing program to screen young children for mild to moderate mental illness, and intervene with strategies to address their problems. AB760 has been held in committee pending further study of its financial effects. Continued on page 35 17 Legal News need the court services. The only way they can find out about those impacts is by reports which citizens and lawyers make to them. If we want them to be familiar with the problems the inadequate funding has caused, we must tell them. In communicating with legislators, we have discovered the following attitudes among non-lawyer legislators: If You See Something, Say Something By Susan H. McCollum • The Judicial Branch must “adapt to change” by raising their own revenue. “I f you see something, say something.” It is a phrase we have heard in connection with terrorist threats. It is a phrase that we now must apply to the effects of the lack of adequate funding to our courts. Each of us has some experience with problems caused in our courts by the staffing cutbacks, the shortened hours, the decreased availability of ex parte hearings, the long waits for reviewing files, etc. We must make our state representatives aware of how their funding cuts impact the citizens in the communities we serve. Forty years ago, lawyers comprised nearly half (47 percent) of the California Legislature. Now, only 21 percent of our legislators have a J.D. degree. There are ten lawyers in the California Senate (25% of the Senate) and only 14 lawyers in the California Assembly (17.5% of the Assembly). These numbers mean that nearly 80% of our California legislators have no idea how the budget cuts to the courts impact the services to the citizens and the businesses who • The local governmental entities should be forced to contribute funds to keep the court’s doors open. • The courts should be renting out their property (charging judges and all court personnel for parking, renting space not actually used for courtrooms, etc.). • The Judicial Branch has an unjustified feeling of “entitlement” to funding. (This attitude seems to come from ignorance that the Judicial Branch is entitled to be funded as one of the three branches of state government.) • The “inconveniences” associated with the underfunded courts are not as serious as problems that occur when the budgets to the health and human services are cut. It is up to us to be the voice of those whose lives have been damaged by lack of adequate access to the courts. Not just at budget time, but all year long, if you see something, say something to one or more of the following: Governor Edmund G. Brown c/o State Capitol, Suite 1173 Sacramento, CA 95814 Phone: (916) 445-2841 Fax: (916) 558-3160 State Senator Hannah Beth Jackson Capitol Office: State Capitol, Room 5080 Sacramento, CA 95814-4900; (916) 651-4019 District Offices: 225 E. Carrillo Street, Suite 302 Santa Barbara, CA 93101; (805) 965-0862 Email: [email protected] ATTORNEYS: STRENGTHEN YOUR TEAM WITH PARALEGAL TRAINING. Paralegals can bring better service to the client and decrease your workload, while providing a higher profit margin. You remain competitive and are able to serve more clients. Is there someone in your office who could benefit from paralegal training? UCSANTABARBARA EXTENSION PARALEGAL PROFESSIONAL CERTIFICATE PROGRAM Classes begin June 24. For questions regarding the program, contact [email protected], 893-7440. To enroll call 893-4200 or visit extension.ucsb.edu State Assemblymember Das Williams 101 W. Anapamu, Suite A Santa Barbara, CA 93105 District office: (805) 564-1649 Fax: (805) 564-1651 Email: [email protected] 18 Santa Barbara Lawyer McIvers&Slater_7.5x4.5_2011 5/4/11 3:52 PM Page 2 McIvers & Slater Mediation and Arbitration Kevin Thomas McIvers [email protected] Hon. James M. Slater 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 • • • • • • • • • • • • • • • • June 2013 19 Geoff Green, Léni Fé Bland, Hon. Thomas Adams, Tara Haaland-Ford, Dr. Bill Elliott, Ellen Goodstein, Steve Amerikaner Heroes for Justice 6th Annual Awards - May 10, 2013 Dr. Andrew Mester, Léni Fé Bland, Marilyn Gilbert (past honoree) Joe Allen, Russell Trenholme, Bruce McIver and company Cameron Clark, LAF Board member Thomas Garcia, LAF Board member Amy Steinfeld, George Short Attendees enjoy the reception 20 Santa Barbara Lawyer LAF staff senior attorney Brandi Redman and company Greg McMurray and Elvia Pacheco Garcia Brian LaVasseur, Jennifer Loren, Teresa Martinez, LAF staff attorney Elizabeth Diaz Hon. Thomas Anderle, Hon. Thomas Adams, Ellen Goodstein Mike Lyons, Geoff Green, Cameron Clark Attendees enter the event on the red carpet LAF Executive Director Ellen Goodstein addresses the audience Hon. Jean Dandona and Hon. James Herman mingle with guests at the reception June 2013 21 Over 28 years assisting law offices locally and remotely with their IT needs. Training: Timeslips Time & Billing Abacus Law Microsoft Office WordPerfect IPad / IPhone Services: Setup of new systems Network administration Malware elimination Monitoring / maintenance Problem resolution Affiliations: Timeslips Certified Consultant Microsoft Partner StorageCraft Partner Rackspace Partner MozyPro Partner (805) 569-0034 www.vbconsulting.com To schedule a consultation, please call 805-879-7517 15 West Carrillo, Suite 300 • Santa Barbara, CA 93101 info @ elinorreiner.com • www.elinorreiner.com 22 Santa Barbara Lawyer Criminal Justice The National Academy of Sciences and Juvenile Justice By Robert Sanger I n March of 1863, during the height of the Civil War in the United States, President Abraham Lincoln founded the National Academy of Sciences (NAS). This spring, the NAS celebrated its 150th anniversary. President Barack Obama gave a speech praising the history of the organization and noting its many achievements. The NAS brings together the finest scientific minds to assist the government on scientific matters from the military, to the space program, to education, to medicine, to global warming, to industrial science, to engineering, to cybersecurity. The National Academy of Sciences also assists the Federal Judicial Center and the Administrative Office of the Courts in understanding and applying scientific principles. In prior Criminal Justice columns we have discussed the Report of the National Academy on Forensic Sciences issued in 2009 and the Third Edition of the Manual on Scientific Evidence issued in 2011. The National Academy has now issued a report on Reforming Juvenile Justice: A Developmental Approach. We will conduct an overview of this scientific study and the implications for a more evidence-based approach to dealing with juvenile justice. The Study The Report recognized that there have been four stages of juvenile justice reform in the history of American jurisprudence. The first was ushered in during the Progressive Era in the late 19th and early 20th centuries. It sought to replace the purely retributive model of punishment with a “Rehabilitative Model.” As a result of this reform, every state in the United States had created a separate juvenile court system by 1925. However, by the 1960’s new concerns arose. Youth advocates began to realize that juvenile offenders were not actually getting the beneficial treatment that the progressives might have intended. There was a documented failure of the rehabilitative programs that were in place and it seemed that some juveniles were being held and confined in an ineffective system. As a result, The United States Supreme Court imposed safeguards requiring a form of June 2013 due process, slightly modified from the adult version but emulating it in most regards.1 This represented the second stage of reform: “Due Process.” As these things happen in a sort of Hegelian progression, the third stage was a reaction to the second and resulted in “Getting Tough on Juvenile Offenders.” This was epitomized by the NaRobert Sanger tional Research Counsel and Institute of Medicine Report of 2001, entitled Juvenile Crime, Juvenile Justice. That study brought the “tough on crime” approach to juvenile offenses. As the NAS noted in this Reforming Juvenile Justice report, there was a reaction at the time to increased gun violence and what was perceived as a “crack-cocaine” outbreak. This 2001 Report advocated a more adult type of punishment. It also resulted in the prosecution of more juveniles in adult courts. Stage four, which the new Report on Reforming Juvenile Justice calls, ”A Window of Opportunity for Rethinking Juvenile Justice,” started to take an evidence-based approach to community programs and to juvenile practices. This is what Reforming Juvenile Justice explores in detail. It examines the scientific and social science evidence to recommend where we go from here. The Sponsors and the Authors The new study was sponsored by the United States Department of Justice. The National Research Council, a part of the NAS, conducted the research within their Division of Social Sciences and Education Committee, their Committee on Law and Justice, and a special Committee on Assessing Juvenile Justice Reform. This project was chaired by Robert Johnson Dean of Adolescent and Young Adult Medicine at New Jersey Medical School and vice-chaired by Dr. Richard J. Bonnie, Professor of Psychiatry and Neurobehavioral Sciences at the University of Virginia. The Committee members included judges; social workers; and professors of education, medicine, law, social policy, and criminology. In addition to the committee members, there was a substantial staff that prepared briefings for the Committee. They also took testimony and had extensive presentation from scholars and practitioners from throughout the country. Various committee members took on the responsibility 23 Criminal Justice of drafting portions of the report. Finally, the Report was submitted to the procedures of the National Research Council’s Report Review Committee and its fairly rigorous editorial process. This sort of work is what makes the written work of National Academy of Sciences impressive. It may be subject to revision when we inevitably get to a fifth stage of juvenile reform in this country but it is a solid piece of work. It is based on the best minds, a collaborative process and the consideration of diverse points of view. Advances in Scientific Understanding of the Adolescent Brain The press release accompanying the official publication of the report in November of 2012 stated that the “legal response to juvenile offending should be grounded in scientific knowledge about adolescent development and tailored to an individual offender’s needs and social environment.” While accountability for wrongdoing and preventing future harm is important, it is also important to treat offenders fairly. The Report based the following three guiding principles on scientific evidence. The first guiding principle, “accountability,” requires that the system communicate a message that youth take responsibility for their actions and the consequences of those actions. To facilitate this, there should be constructive involvement of family members to encourage taking responsibility and the use of community service and restitution. Confinement should be used sparingly, generally when it is needed to prevent serious reoffending and when collateral consequences of juvenile adjudication should be minimized. The second principle, “to prevent reoffending,” encourages structured risk and need assessment instruments to identify low-risk youths who can be treated in communitybased systems while reserving more intensive programs for the truly high risk offenders. Interventions should be used based on evidence-based knowledge of adolescent development and also based on the needs of the individual. It involves engaging the family and fostering prosocial development while eliminating harsh interventions that have proven to actually be harmful. The third guiding principle, “fairness,” seeks to ensure that the youth has properly trained counsel, that they are adjudicated only if competent to understand the proceedings and to assist counsel, and that they are encouraged to participate in all the proceedings. Fairness also requires an effort to reduce racial and ethnic disparities and other forms of unequal treatment. Overall, there must be an effort to allow the youths to perceive that they have been treated 24 fairly and with dignity. The Conclusions and Recommendations The NAS Report, Reforming Juvenile Justice, notes that we have come a long way in understanding the science of brain development in the last 15 years. In particular there has been a significant increase in the understanding of the neurobiological development of adolescents and how that affects behavior during this period of life. They also note that there has been increased research into pathways to juvenile delinquency and patterns of offending. Finally, there has been time to study the adverse effects of the “tough on crime” approach that involves juvenile offenders in an adult system of punishment. The conclusion of the report on Reforming Juvenile Justice is that the Office of Juvenile Justice and Delinquency Prevention (OJJDP) be given funding and a more active role in working with the States to implement what has been learned. Many of the recommendations at the end of the report seem a bit bureaucratic and may be, but that is the nature of Washington. However, the message is clear: adult types of punishments for juveniles are counterproductive and are not justified by the scientific evidence. The NAS specifically recommends that we take an enlightened approach based on what counts for enlightenment today. We can assume that our views will change in the future as they have over the history of juvenile justice reform in this country. But we have a chance to use the scientific evidence available and make the world a better place, not a worse place, as we deal with youthful offenders. The NAS is a valuable resource for our Nation and we should not hesitate to use the results of its hard work. Endnotes 1 See, for instance, In re Gault, 387 U.S. 1 (1967) and In re Winship, 397 U.S. 358 (1970). Robert Sanger is a Certified Criminal Law Specialist and is in his 40th year as a criminal defense lawyer in Santa Barbara. He is a partner in the firm of Sanger Swysen & Dunkle. Mr. Sanger is the 2013 President of California Attorneys for Criminal Justice (CACJ), the statewide criminal defense lawyers’ organization. He is a Director of Death Penalty Focus and is a Member of the ABA Criminal Justice Sentencing Committee and the NACDL Death Penalty Committee. Mr. Sanger is also a Member of the American Association for the Advancement of Science (AAAS) and the American Academy of Forensic Sciences (AAFS). Santa Barbara Lawyer TED AND HIS CALIFORNIA FORMS WERE INSEPARABLE. LIGHTEN YOUR LOAD WITH WESTLAW FORM BUILDER. 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Some of Leila’s outstanding accomplishments: • Jury verdicts in excess of $150 million on behalf of her clients. •• Multi-million dollar class action juryand verdict against Wells Fargo for intentional Within the last two years, sued successfully settled more than $200lending discrimination based on race/ethnicity. million in loan portfolios on behalf of various commercial borrowers against • Jury in excess of $150 million on behalf of her clients. theirverdicts lenders. • Within the last two years, sued and successfully settled more than $200 million in loan Leila portfolios currentlyonisbehalf representing a major manufacturer against consortium of European of various commercial borrowers against their a lenders. banks involving a $350 million claim. Leila currently is representing a major manufacturer against a consortium of European banks involving aWe $350 aremillion proudclaim. of the tremendous impact Leila has made on the lives of the clients she has represented over the years in lender misconduct and other complex litigation. She has We proud of thereputation tremendous impacther Leila has made onand the the lives of the clients has builtare a nationwide for giving clients a voice strength to winshe against represented over the years in lender misconduct and other complex litigation. She has large corporations and financial institutions in court. built a nationwide reputation for giving her clients a voice and the strength to win against large corporations and financial institutions in court. The national leader in lender liability litigation • Verdicts & settlements totaling over $1 billion 831 State Street, Santa Barbara, CA 93101 26 tel: (805) 564–2444 Santa Barbara Lawyer www.cappellonoel.com THIRD ANNUAL FOOD FROM THE BAR DRIVE - J ULY 1 through July 31, 2013 _____________________ Community Partners _____________________ Premier Sponsor Food From The Bar Kick Off Event! Thursday, June 27 from 5:30-7pm 819 Anacapa Street Platinum Sponsor Silver Sponsors Larry Laborde & Denise McIntosh Join us for drink, appetizers, and fun! 25% of all proceeds from the event will be donated to the Foodbank as part of the drive. This year will mark the 3rd annual Food From The Bar Drive! Once again, the funds raised through Food From The Bar will benefit the Foodbank's Picnic in the Park program to feed children in our County. Food From The Bar Drive sponsorships are still available! Please contact Jennifer Smith for more information ([email protected] 805-628-2183). Santa Barbara Women Lawyers | PO Box 20276 | Santa Barbara | CA | 93120 | www.sbwl.org June 2013 27 Legal News Title Insurance By Marcus Bird T itle insurance is somewhat like oxygen, you do not really pay much attention to it, but when you come to a situation where you realize that you need it, you really need it. I have represented title insurance companies and their insureds for well over a decade. The difference for clients between having valid title insurance and not having valid title insurance has amounted to hundreds of thousands of dollars in fees and costs defending lawsuits filed by their neighbors. Some of the issues I have handled that have been covered by title insurance include: (1) a claim that there was a forgery in the chain of title 20 years before my clients purchased the property and thus they did not have valid title (after I took the plaintiff’s deposition, his attorney promptly dismissed the case); (2) a claim that a neighbor had adversely terminated a deeded exclusive easement for landscaping, recreation, and fencing; and that the exclusive easement violated the Subdivision Map Act (we established at trial, with the judgment upheld on appeal, that the easement did not violate the subdivision Map Act, and the easement had not been terminated); and (3) a claim that although my client had been using a roadway on his neighbor’s property for over decade, my client had no valid easement and thus no access at all to his property (this case is still pending). If a dispute arises with a neighbor, the expense of litigating such claims without insurance can be crushing. Having a valid title insurance policy can mean having the financial resources available to defend the ownership of your property or access to your property. Here are two key points to keep in mind: 1. It Is Imperative That The Insured Keeps The Title Insurance Policy In A Safe Place. Title insurers do not necessarily maintain records for very long. A senior claims counsel at Chicago Title Insurance Company recently advised me that they only keep their title files for seven years. Given that title insurance claims can arise decades after the policy has been issued, this document 28 retention practice could seriously impact insureds who do not keep careful track of their policies. If a claim arises, you have to make sure that you have the actual title insurance policy or a copy of the original policy. The preliminary report, which one typically obtains in the course of escrow to identify encumbrances on the property, is not the Marcus Bird title insurance policy. It is not an abstract of title and it does not constitute a warranty or guarantee that there are no unidentified encumbrances. It is the title insurance policy itself, and the insured and excluded items listed in the policy, that define the insurer’s obligations. (Glavinich v. Commonwealth Land Title Ins. Co. (1984) 163 Cal.App.3d 263, 270.) Keep the original of the policy in a safe deposit box or, if you do not have a safe deposit box, keep a copy at your office. If your only copy is at home and you have a fire, you may be out of luck. If you require access to your property over another person’s property and you have lost your original policy, you might consider obtaining another title insurance policy. Once a dispute arises, it will be too late. You may not have had any problems with your neighbor for decades, but all it takes is for your neighbor to sell their property and the situation may change completely. 2. If The Insured Transfers The Property To Another Legal Entity Or A Trust, With Certain Policies You Must Obtain An Endorsement That Continues Coverage. Ten years ago, I wrote an article in the Santa Barbara Lawyer magazine concerning a case I handled for First American Title Insurance Company. In that case, the plaintiffs were a husband and wife. They had obtained a title insurance policy from First American when they purchased their property and they were the named insureds in their individual capacities. For tax reasons, after they bought the property, their attorney told them that they should transfer the property to a partnership. The only members of the partnership were the husband and wife. The attorney did not mention anything about title insurance. After plaintiffs transferred the property, they had an issue with the City of Santa Barbara concerning the City’s plans Santa Barbara Lawyer Legal News to install a sidewalk on the front of their property. The result of the City’s plan was that plaintiffs had to move their entire house, at enormous cost, to the rear of the property. The City’s right to place sidewalks on the front of the property was not referenced as an exception in their title policy, so they submitted a claim. First American denied the claim because: (1) by transferring the property to the partnership, they had terminated their coverage; and (2) there were other, more general exclusions that applied. Plaintiffs then sued for breach of contract and bad faith, asking millions of dollars in damages. The issue of policy termination by transfer arises because under the terms of the title insurance policy, the insurance is only available to the named insured and those who succeed by operation of law (e.g. heirs if the insured dies). If there is a voluntary transfer or sale, coverage does not follow. This generally is understood when a property is sold in an arms’ length transaction; the buyer gets title insurance in connection with the escrow. It becomes a problem when the insured makes a voluntary transfer to a related entity such as a partnership or trust. In the First American case, the trial court granted summary judgment on the issue of policy termination, as well as on the general exclusions. The court of appeal upheld the judgment in an unpublished decision. At the time, there were no published California appellate decisions on the issue. However, there has since been a published decision that makes clear that, with respect to certain title insurance policies, transferring the insured property terminates coverage for the named insured: Kwok v. Transnational Title Ins. Co. (2009) 170 Cal.App.4th 1562. The insured in Kwok was an LLC. Its members dissolved the LLC and transferred title to themselves as trustees of a revocable family trust. Even though coverage would have continued if they had simply kept the property in their individual names (because they then would have been successors by operation of law), when they transferred the property to themselves as trustees of the family trust, coverage terminated. Under a number of other statutory or regulatory provisions, transfer of real property to a family trust is a legal non-event. However, in the context of title insurance such a transfer can be fatal to coverage. Kwok expressly held that when the plaintiffs transferred the insured property into a revocable trust, the transfer terminated policy coverage. (Id. at 1571.) The lesson is that if there is a voluntary transfer of title, the insured needs to make sure that title insurance continues. Kwok involved a CLTA Standard Title Insurance Policy, which had a narrow definition of the named insured. However, there are certain title insurance policies, such as the June 2013 ALTA policies that have a broader definition of “insured” which includes a transfer to an entity wholly owned by the insured or a trust for which the insured is the settlor for estate planning purposes. Coverage under those policies will continue after a property is transferred to a revocable trust. For those policies with the narrower definition of “insured,” it is necessary to obtain what is called a 107.9 endorsement, which adds the new vestee as an additional named insured, for a cost in the area of $100. The endorsement costs far less than the cost of a new policy. A new policy would be based on the current market value of the property, which the title insurance company would have to determine. Of course, if a dispute arises before the endorsement is issued, there will be no coverage for the claim; at that point the insured will lament the failure to spend a $100 and obtain a timely endorsement. In conclusion, keep your title insurance policies safe and accessible and make sure that you do not voluntarily terminate their coverage. Valid, provable policies can make an enormous difference when a neighbor seeks to terminate your access, or when a relative of the person who sold you property claims that he or she is the true owner. Classifieds Office for Rent Office and Conference Rooms available in beautiful office 1 block from SB Courthouse, for client meetings, depositions, mediation, and arbitration. 805-689-6654. Contract Attorney Position Dynamic Southern California Law Firm with offices in Santa Barbara and Orange County is looking for a Contract Attorney with 2-3 years litigation experience to work in their Costa Mesa Office. Practical legal writing and litigation experience is a must. Please email cover letter, resume, and writing sample. If interested, please send materials to:[email protected]. Please put “Contract Attorney Position” in subject. SHARE ATTORNEY SUITE 225 E. Carrillo St. #202 Large office with shared common area reception and secretary area copy machine and fax included covered parking space 3 minutes to Courthouse (805) 963-4484 available now 29 Legal News Pro Bono Profile Randall Sutter and the Bankruptcy Self-Help Clinic By Jacqueline Hall I n 2011, the United States Bankruptcy Court, Central District of California released their report on Access to Justice in Crisis: Self-Represented Parties and the Court. The report found that approximately 28 percent of bankruptcy filings in the Central District are filed without an attorney, compared to about 9 percent nationwide. In 2011 alone, the number of self-represented bankruptcy debtors in the Central District of California numbered 38,098; and if self-represented creditors in bankruptcy actions are included, the number of self-represented litigants in Central District Bankruptcy courts in 2011 exceeded 40,000. Does it matter if a litigant has an attorney? Most attorneys know that answer is yes. The Central District’s report shows how much of a difference attorneys make in bankruptcy cases. The goal of a chapter 7 bankruptcy is a discharge of debts. In the Central District of California, selfrepresented debtors in chapter 7 cases obtain a discharge of debt approximately 61 percent of the time whereas attorney-represented debtors in chapter 7 cases obtain a discharge of debt 95 percent of the time. In chapter 13 bankruptcy, the goal is to create, and stick to, a plan to pay arrearages over many months to make up for missed payments. Approximately 55 percent of attorney-represented debtors reach confirmation of a plan, whereas only 0.4 percent of self-represented debtors do – showing that it is nearly impossible for self-represented debtors to succeed in chapter 13 bankruptcy. To help level the playing field for bankruptcy litigants, a free Bankruptcy Self-Help Clinic was started in 2009 in Lompoc and moved to the Northern Division Bankruptcy Court on State and Cota Streets in 2010. Every Friday morning, pro bono attorneys meet with self-represented bankruptcy litigants and assist them with their bankruptcy related issues. Randall Sutter helps manage the Bankruptcy Clinic by coordinating the volunteer attorneys and by searching for grants to help provide funding to the clinic. Randall began his career with the United States Department of Defense and then became an entrepreneur in the trucking industry where his company conducted cargo 30 claim investigations on damaged or lost freight for the trucking, ocean, and airline industries. He had always considered going to law school, and eventually decided to take advantage of the evening classes offered by the Ventura and Santa Barbara Colleges of Law. Randall started practicing law part-time in 2006, focusing on small business and transportation legal issues, and by 2009 decided to expand his practice to full-time. It was then that he was introduced to bankruptcy law. “Initially, I did not think this area of the law would interest me as I was focused more on building businesses than bankrupting them. But, once I began learning bankruptcy in-depth, I found that bankruptcy law is really about allowing businesses and individuals to reorganize or liquidate their debt so that they can rebuild their business or life.” Bankruptcy is now a major part of Randall’s practice at his firm, Rounds & Sutter LLP in Ventura, which also handles consumer debt issues, real estate, and business law. Two years ago, while waiting to make an appearance at the Bankruptcy Court here in Santa Barbara, Randall ran into a Legal Aid employee who informed him of the Bankruptcy Self-Help Clinic and said they were looking for volunteer attorneys. Randall, who already had a history of volunteering with the Ventura Teen Legal Clinic, agreed to become a volunteer. “By volunteering, I thought it would be an ideal way to help others, give back to the community, and further my knowledge of bankruptcy.” During the two years that he has been working at the Clinic, Randall has been able to help many different individuals. “In a particular way, each client makes an impact on me with their unique circumstances. My primary goal is to give each client a sense of relief and eliminate the stress they may be experiencing.” Many of Continued on page 37 Santa Barbara Lawyer SBCBA History 2003 ~ 10 Years Ago This Month in Santa Barbara Lawyer History... • The publication bore its current name. •16TH Annual Law Day race was covered; 150 participants raced in the pouring rain on May 3, 2003. • James E. Herman was serving as the State Bar President. • Professor Richard A. Falk spoke during law week about the newly named “Bush Doctrine.” • The SBCB Foundation thanked Bruce Anticouni, who made a $12,500 gift to the Foundation. 1993 ~ 20 Years Ago • The magazine included “gossip” to which it could not guarantee accuracy, which included: Judge Loberg “used to be a professional lounge pianist and he still plays, and he compares his style to the popular Sheryl Crow!” • The publication was known by its former name, The Quibbler • The Law Day race included a 15km, 5km, and 3 x 5 km Relay • An appeal for donated equipment and supplies was made for the new Legal Resource Center. • The fastest all-attorney relay team was Rick Battles, Mike Cage, and Greg Faulkner from Mullen and Henzell. • Attorney Ronald F. Merlino wrote an article about the 1988 Veterans Judicial Reform Act, and how it began shaping the practice of Veteran’s law 2008 ~ 5 Years Ago • A memorial and tribute for Judge Joseph Lodge was included (1932-2008). • A notice of new Superior Court Arbitration panels was announced. • Legal Aid reported on its Annual Volunteer Appreciation Reception, which honored Marjorie Johnson, R. Thomas Griffith, and Arnold S. Jaffe. • A notice that effective January 1, 1993, Business & Professions Code Section 6147 now required attorneys to disclose whether they maintained legal malpractice insurance. • Eli Harris, a 9th Grader at San Marcos won the Law Day essay contest and his article entitled, “The Importance of the Rule of Law” was included. Notably, Mr. Harris is now a second year student at Amherst College in Massachusetts, majoring in Asian Languages and Civilizations (Chinese) with a focus on Social Justice, maintaining a 3.85 GPA. • Judge Arnold Gowens held a retirement party on April 24, 1993. • SB Police Chief Richard Breza spoke to the County Bar Association Board about the Department’s $15 million dollar plus operation, and the biggest problem the department faced was an increase in gang activity. 1998 ~ 15 Years Ago • The publication was still known by its former name, The Quibbler. Edward Jones ranked “Highest in Investor Satisfaction with Full Service Brokerage Firms, Two Years in a Row” • The lead article was an interview with recentlyappointed Judge William McLafferty. • The 11th Annual Law Day Race was covered. Visit jdpower.com • Pictures of the Annual BBQ included State Bar President Marc Adelman. Daniel J De Meyer Financial Advisor • Judge Harry Loberg was elected by his colleagues to serve as the Presiding Judge for Santa Barbara Munipal Court for the balance of the term vacated by Judge Joseph Lodge, who resigned from the post. June 2013 . 125 E De La Guerra St Ste 101 Santa Barbara, CA 93101 805-564-0011 31 www.edwardjones.com Member SIPC ! The Santa Barbara County Bar Association invites Members and Guests to our ! 2013 Golf & Tennis Tournament Thursday, August 22, 2013 COCKTAILS (No Host Bar) 5:30 pm at the Montecito Country Club DINNER 6:30 at the Montecito Country Club, $45 per SBCBA Member/$50 per Non-SBCBA Member (after August 10: $50/$55) GOLF Meet at Montecito Country Club Course ½ hour before tee time. Shotgun starts at 1pm. Team prizes for 1st & 2nd places. Individual prizes! Players must give some estimate of his/her handicap. You will be contacted regarding team assignments. $95 to Play per SBCBA Member/$100 per Non-SBCBA Member – Includes green fees & cart. (Fee after August 10: $100/$110) $140 per SBCA Members/$145 for Non-SBCBA Members for BOTH Golf and Dinner ($145/$150 after August 10) TENNIS Meet at The Tennis courts at the Montecito County Club at 3:00 pm for warm-up with round robin play beginning at 3:30pm. A committee will form teams, reserving the right to make equitable adjustments in all levels. Men and women will participate in the tournament in all levels. Prizes to tournament winners! $25 to Play per SBCBA Members/$30 for Non-SBCBA Members – Includes court fees and balls. (Fee after August 10: $30/$35) $70 for BOTH Tennis and Dinner per SBCBA Members/Non-SBCBA Member $75 ($75/$80 after August 10) To register, please fill out bottom portion of this flyer and mail, with check, to: SBCBA 15 West Carrillo Street, Ste. 106, Santa Barbara, CA 93101 Please clearly specify GOLF HANDICAP or TENNIS RATING. Questions? Call the SBCBA at (805) 569-5511 All new! Tee Sponsorship: Tee sign on course with your company name ($100) Name & Phone Number Handicap/ Rating Tourney Fees Dinner Vegetarian? Total Amount Enclosed: $___________________________________ (all fees are non-refundable) 32 Santa Barbara Lawyer The Intellectual Property/Technology Business Section and In-House Counsel & Corporate Law Section of the Santa Barbara County Bar Association present: The New Domain Names: What Do You and Your Clients Need to Know? The domain name system is expanding exponentially: from 22 generic top-level domains (gTLDs) currently in use to potentially 1400 more “right of the dot” names now under review by ICANN, the international body that governs internet naming and addressing practices. These names include such industry-specific terms as .hotel, tech., .beauty, .music, and .reit. Soon the first of these new gTLD’s will be launched, and it will be possible to register second-level or “left of the dot” domain names in each of them. A Trademark Clearinghouse has been set up to give trademark holders priority in registering second-level domains corresponding to their marks and to notify third parties of claimed trademark rights. New gTLD registries are formulating dispute resolution policies in anticipation of the trademark clashes to come. Join us to learn about the benefits and limitations of these new procedures for trademark owners in the vastly expanded domain name universe. Speaker: Christine L. Kopitzke, SoCal IP Law Group Chris Kopitzke is a partner in Cal IP Law Group, resident in the firm’s Santa Barbara office. Her practice focuses on trademark and copyright counseling and dispute resolution. She advises clients in a wide array of businesses and industries on the adoption and use of trademarks and on the protection, enforcement, licensing, and transfer of trademarks, copyrights, publicity rights, and domain names. Chris is an advisor to the Executive Committee of the Intellectual Property Section of the State Bar of California and has served as editor of New Matter, the Section’s quarterly journal. She was an editorial consultant for the 2008 CEB treatise Intellectual Property in Business Transactions, and regularly speaks on trademark and copyright topics to professional audiences at the local and state levels. Chris earned her law degree at U.C. Berkeley and a Bachelor of Arts degree from Pomona College in Claremont, California. Date: Thursday, June 20, 2013 Time: 12 noon Location: Santa Barbara College of Law, Room 1, 20 East Victoria Street, Santa Barbara Reservations: Reserve via email to Chris Kopitzke, Chair of Intellectual Property/Technology Business Section, by Monday, June 17, [email protected] Cost and Payment: $25.00 – includes lunch Mail checks by Monday, June 17, payable to Betty Jeppesen, Chair of In-House Counsel & Corporate Law Section, 800 Garden Street, Suite K, Santa Barbara, CA 93101 MCLE: One hour credit applied for June 2013 33 Legal Community Naomi Dewey, Principal at Buynak, Fauver, Archbald & Spray, has been selected for the 2013 California Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. As a Rising Star, Naomi will be included in ‘Top Women Attorneys in California,’ a special publication of Super Lawyers and Los Angeles Magazine. Santa Barbara native Alicia Journey recently opened her practice, Journey Law, which handles a variety of civil and criminal matters including family law, estate planning, bankruptcy, immigration, landlord-tenant disputes, collaborative law, conservatorships, formation of non-profit/ foundations, legislation, and lobbyist work. Alicia graduated from Westmont College and worked on Capitol Hill as a Legislative Consultant and started a variety of non-profit organizations, including “For Our Troops” designed to provide tailored needs to service men and women and their family upon returning from deployment. Upon completing her time in Washington D.C., Alicia obtained her law degree from Pepperdine University School of Law and a degree in Alternative Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine School of Law. Alicia also serves on Santa Barbara Women Lawyer’s 2013 Board of Directors and chairs the membership and professional development committees. The Santa Barbara Barristers are pleased to announce that local attorney Andrew Mitchell has joined its board of directors. Andrew also runs his own practice at the Law Office of Andrew B. Mitchell, and is of counsel to Lynn & O’Brien, LLP. The Barristers are excited to have Andrew join the board! Connecting x ATTORNEYS • PARALEGALS • LEGAL STAFF confidential employment placement 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 34 The Santa Barbara Barristers recently completed and released the 2013-2014 Santa Barbara Barristers Attorney Directory. The Attorney Directory, which the Barristers produce and publish bi-annually, provides a concise, comprehensive and helpful resource for locating attorneys, judicial officers, government agencies, and other legal resources and services throughout Santa Barbara County. Information on how to obtain a copy of the Directory can be found on the Barristers website at sbbarristers.com. Ti m o t h y D e a k y n e joined the law firm of Allen & Kimbell on May 1st as an associate attorney with his practice focused on estate planning and trust administration. Before joining the firm, he started and developed his own practice in trusts and estates. Mr. Deakyne graduated from the University of California, Santa Barbara in 2003, received his law degree from Villanova University in 2006, and joined the California Bar in 2008. He is a proud contributor to the Santa Barbara community. For the past three years, he has served as Treasurer of the Santa Barbara Barristers. He serves on planned giving advisory boards for both UCSB and the UCSB Alumni Association. He is a volunteer coach for the Special Olympics, AYSO, and YMCA. He is an avid sports fan, most of all enjoying cheering on the UCSB Gauchos and spending time with his wife, Jenny, and three children, TJ, Margaret, and Cassian. His family is expecting another son later this summer. Santa Barbara Lawyer Legal News Legal Community Firearm Legislation, continued from page 17 Assembly Bill 761. Restrictions on CalPERS and CalSTRS Investments. This bill would require CalPERS and CalSTRS to divest any existing pension fund investments from companies that manufacture, sell, distribute or market firearms or ammunition. The Assembly Appropriations Committee has scheduled a hearing for May 24, 2013. Assembly Bill 1020. Notice of Gun Laws. This bill would require the state attorney general to send a letter to gun purchasers during the 10-day waiting period informing him or her of the state’s laws on gun trafficking and safe storage. The Assembly Appropriations Committee has scheduled a hearing for May 24, 2013. On April 24, 2013, the Santa Barbara Legal Professionals Association installed its new board for 2013-14. President Terri Collier-Stringer, CCLS, would like to thank and congratulate each of the following members for their enthusiasm and dedication: Co-Vice Presidents: Noemi Vasquez and Lisa Velez; Treasurer: Terry Utterback; Governor: Mary L. Conry; and Executive Advisor: Linda Nicholson. Ms. Stringer is looking forward to many changes as SBLSA makes the change-over to SBLPA with her goal of doubling membership through expanding awareness in the local legal community of the educational opportunities offered by SBLPA, not only to legal secretaries, but to those working in all careers related to the area of law. General membership meetings are held quarterly in the evenings, with the next meeting in June, and the very popular Learning @ Lunch programs are featured on a monthly basis. 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 for content, length, and/or clarity. June 2013 Assembly Bill 1084. Firearms in School Zones. This bill would toughen the existing penalties for carrying or firing a firearm in school zones, carrying a firearm on public or private university campuses, carrying a firearm in a playground or a public or private youth center during operating hours, for being a felon in possession of a firearm, providing a firearm to anyone prohibited from having it, and selling a firearm to a “straw purchaser” who is known not to be the actual buyer. The bill also would require probation supervision for anyone released from prison after doing time for any offense involving deadly weapons. The Assembly Public Safety Committee failed to pass the bill on April 30, 2013. The status of the above bills was as of May 20, 2013. Goebel, continued from page 6 All of this was accomplished in temperatures that began at 90 degrees Fahrenheit. But I had a great time. I literally wore the soles off of my hiking boots and had to use some of the construction wire to keep my shoes on. I would cut my feet loose at the end of each day and then re-wire my boots back together in the morning. I wore out the fingertips of my gloves. I still have a blister on my finger from the trip that concluded on March 17, 2013! We did not finish the house, but we got a pretty good start on it. What inspired me to go? I was sitting at my desk when the electronic Habitat for Humanity newsletter popped up in my e-mail. I am one of those “Why not?” people who does not need too much prodding to take an adventure, particularly one that was as rewarding as my March trip to El Salvador. I brought back bags of coffee (their main crop), but it is all gone now. Sorry! 35 Legal News Verdicts and Decisions Davis v. Childress et al. Santa Barbara Superior Court, Anacapa Division Case Number: Type of case: Type of proceeding: Judge: Length of trial: Length of deliberations: Date of Verdict or Decision: Plaintiff: Plaintiff’s Counsel: Defendants: Defendants’ Counsel: Experts: 1374111 Sexual harassment Jury trial Hon. Donna D. Geck 11 days 3 hours December 17, 2012 Maryl Davis Alan R. Templeman and Brett C. Templeman of The Law Offices of Lowthorp, Richards, McMillan, Miller & Templeman, P.C. William J. Childress and St. Jude Medical, S.C., Inc. For Defendant Childress: Michael St. Denis of Michael St. Denis Professional Corp.; For Defendant St. Jude Medical, Inc.: Tracey A. Kennedy and Matthew A. Tobias of Sheppard, Mullin, Richter & Hampton, LLP For Plaintiff: Richard B. Danehy (Human Resources) and John E. Nordstrand (Economist); For Defendants: Albert Lee (Economist) Overview of Case: Plaintiff was a female sales associate for defendant St. Jude, a medical supply company, and worked in the same territory as longtime St. Jude sales representative defendant William J. Childress. Plaintiff complained to St. Jude that Childress was harassing her and requested a transfer. She selected Iowa as she met her future husband, an Iowa resident, during the time she was being harassed. She was terminated after one year and four months for not meeting sales quotas. Plaintiff filed suit against Childress for quid pro quo sexual harassment and filed for and hostile work environment sexual harassment against both Childress and St. Jude. Plaintiff also alleged that St. Jude wrongfully demoted and terminated her in retaliation for raising her claims. Facts and Contentions: Plaintiff alleged that defendant Childress, a 59-year-old married senior sales representative, sexually harassed Plaintiff, a 37-year-old sales associate, by developing an improper romantic and sexual obsession with his subordinate. Childress repeatedly told Plaintiff that he was in love with her and he would not give up his pursuit of her until she slept with him. When his advances were rejected, Childress responded by attempting to freeze her out of her territory. After she complained, St. Jude’s human resources department investigated and found that Childress had violated company policy regarding sexual harassment but did not discipline him because he was one of their highest producers. Plaintiff requested a transfer to get away from Childress. St. Jude transferred her to Iowa, but according to Plaintiff, gave her an unproductive territory, and later terminated her claiming that she was not making her numbers. Defendants denied all of Plaintiff’s claims and allegations. St. Jude was first made aware of Plaintiff’s complaint in July 2010. At that time, she was placed on a paid leave of absence. Plaintiff requested in her complaint to be transferred to 36 Santa Barbara Lawyer Legal News Iowa because it was a “win-win” for her and the company. St. Jude agreed, and paid to transfer her to Des Moines, and promoted her from a Sales Associate to a Sales Representative (which is what she requested). St. Jude offered Plaintiff other transfers in California, but she refused. At the time of the transfer, St. Jude was unaware of Plaintiff’s romantic personal relationship. Nonetheless, St. Jude also gave her a one year guarantee ($160,000 a year) so she could develop her sales territory. Childress claimed that the alleged harassment never occurred. Childress also claimed that Plaintiff engaged in bantering with him as well. Both defendants denied that Childress was Plaintiff’s supervisor. Both defendants claimed that Plaintiff’s internal complaint was just a tactic to move to Iowa to be with her future husband. Result: 9-3 verdict against both Childress and St. Jude for hostile work environment sexual harassment. The jury awarded $224,000.00 against Childress and $0.00 against St. Jude. Plaintiff was subsequently awarded attorney’s fees and costs from Childress which increased the total judgment to $609,488.07 as to Childress only. Judgment was entered in favor of St. Jude as to all claims and against Plaintiff. Judgment was entered in favor of Plaintiff on the hostile work environment sexual harassment claims, and against Childress. Legal Community Pro Bono, continued from page 30 the people Randall has helped have expressed their thanks to him in the form of phone calls and notes informing him of how they were able to turn their lives around, professionally and personally, after getting assistance at the Clinic. Volunteering at the Clinic has also helped Randall. He states that “it has reinforced my belief that what is important is not the challenges and struggles we face in our lives, but how we respond to these adversities.” Along with that, it has also validated his decision to practice bankruptcy law and afforded him the chance to meet, work with, and learn from a variety of exceptional people in the bankruptcy community. Volunteering at the Clinic has been “very rewarding and very humbling” for Randall, and the work he and the other volunteers have done has made a big impact on our community. At the time Randall started volunteering at the Clinic, it consisted of only two volunteer attorneys and only operated twice a month. Since that time, the Clinic has expanded to every Friday morning and has a rotation of 7 attorney volunteers, 1 non-attorney volunteer, and 5 court staff who assist self-represented litigants. On April 19, 2013, the Clinic opened a new office space in the lobby of the court. Seeing the good work that was being done by the Clinic, the Bankruptcy Court provided the funds to build the new Clinic space and also created a dedicated clerk window for Clinic clients. This summer, the Clinic hopes to expand its services to have two attorney volunteers assisting selfrepresented litigants each Friday morning. Legal Aid would like to extend its thanks to Randall Sutter June 2013 for his hard work at the Bankruptcy Self-Help Clinic. Legal Aid would also like to thank the United States Bankruptcy Court, Central District of California, Northern Division for the construction of the new Clinic space. Additionally, we would like to thank all of the Clinic volunteers and supporters - Attorney Volunteers: Carrissa Horowitz, Reed Olmstead, Monica Robles, Luis Esparza, Natalie Spilborghs, Anne Rycroft; Clinic Staff Volunteers: Jean Linn; US Bankruptcy Court Staff: Judge Riblet, Meredith Klassen, Cheri Davis, Jim McNabb, and Casey Nelson. Please stop by the Clinic this summer to see the new space and see how you can make a difference in our community. 37 June 2013 Calendar 3 Santa Barbara Lawyer Submission Deadline 7 SBCBA BBQ 20 SBCBA The Intellectual Property/Technology Business Section and In-House Counsel & Corporate Law Section 27 Food From the Bar Kick Off Event at Intermezzo 1 23 456 78 910 111213 1415 1617 181920 2122 23/30 24 252627 2829 2013 SBCBA SECTION HEADS Alternative Dispute Resolution David C. Peterson 441-5884 [email protected] Bench & Bar Relations James Griffith [email protected] 308-0178 Civil Litigation Naomi Dewey [email protected] 966-7422 Client Relations Thomas Hinshaw [email protected] Scott Campbell [email protected] Saji Gunawardane [email protected] Criminal Law Catherine Swysen [email protected] Brian Cota [email protected] 729-2526 963-9721 845-4000 962-4887 Debtor/Creditor Robert Hurlbett [email protected] Reed Olmstead [email protected] Elder Law Denise Platt [email protected] Russ Balisok [email protected] 963-9111 963-9111 682-8271 (818) 550-7890 Employment Law Kimberly Cole [email protected] Estate Planning/Probate Brooke Cleary [email protected] David Graff [email protected] 845-4581 965-1329 963-8611 Family Law Maureen Grattan [email protected] 965-2288 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 568-2424 2013 Annual BBQ A Night at the Museum! What: The Santa Barbara County Bar Association invites Members, Guests & Budding Paleontologists to our Annual BBQ: A night at the Museum! When: 5pm, Friday, June 7, 2013 Where: Santa Barbara Museum of Natural History, 2559 Puesta del Sol, Santa Barbara, CA 93105 Imagine a Museum where, after hours, lawyers and their families can walk right up 38 Santa Barbara Lawyer to creatures of all sizes including a 72-foot Blue Whale skeleton (1 of only 5 in the r u b e n st e i n s o Attorneys r eat Law n s e n adr Streamlined Approach ~ Results ~ Cost Effective (Fee Structures for Every Size Case; No Add-On Charges ) s er vices Arbitration Is pleased toMediation, announce that Referee, Special Master Christopher E. Hahn Real property joined the firm october 1, 2012 Probate Mr. Hahn’s practice focuses Business Victoria Lindenauer, Esq. Mediator onFamily Real Property and Business Transactions business and succession Employment and that Personal injury Timothy R. Deakyne joined the firm on May 1, 2013 R e aMr. dDeakyne’s y t practice o sfocuses ettle your case on Estate Planning and Trust Administration Rubenstein, J.D., M.A., Psych. 317 EastJudith Carrillo Street, Santa Barbara, CA 93101 [email protected] u eFAX (805) 963-8611 www.rsm d i a(805) t e . c962-1940 om dl 8WWW.AKLAW.NET 05.637.6850 Robert J. Rodino, Ph.D. Lol Sorensen, J.D., M.S.W lo l @ r s m e d i a t e . c o m www.rsmediate.com Real Estate Expert Witness Research & Testimony dl 8 0 5 . 6 8 9 . 6 6 5 4 All Major Property Types Acquisitions & Dispositions, Development Property Mgmt, Investment Analysis, Brokerage Affiliate Member Santa Barbara Bar Association [email protected] www.RodinoAssociates.com Attorneys at Law Is pleased to announce that Christopher E. Hahn joined the firm october 1, 2012 Mr. Hahn’s practice focuses on Real Property and Business Transactions and that Timothy R. Deakyne joined the firm on May 1, 2013 Mr. Deakyne’s practice focuses on Estate Planning and Trust Administration 317 East Carrillo Street, Santa Barbara, CA 93101 (805) 963-8611 u FAX (805) 962-1940 WWW.AKLAW.NET June 2013 39 310-459-9474 310-614-2193 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 21 years and a Real Estate Broker with my own company for over 18 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 19th 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 $450,000,000 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] 40 Santa Barbara Lawyer
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