Real Estate Law - Contra Costa County Bar Association

Contra Costa Lawyer
Volume 22, Number 6 • June 2009
The official publication of the
B A R A S S O C I A T I O N
Real Estate Law
The American Recovery and
Reinvestment Act of 2009 and its
Effect on California, and more...
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Contra Costa Lawyer
Volume 22, Number 6 • June 2009
B A R A S S O C I A T I O N
contents
features
8 Money doesn't talk, it swears
A snapshot of how the economic
stimulus bill impacts the homebuilding
and construction industries
Kathleen F. Carpenter
12 The American recovery and
reinvestment act of 2009
Jim Melino
16 Commercial Unlawful detainers
How to avoid evictions in a recession
Geoffrey Steele
18 AB2881 One mile radius farmland
disclosure of 2009
Mailana Mavromatis-Broumand
departments
4 Inside
Kristen Thall Peters
6
Judicial Profile Lewis A. Davis
14
Question Man what impact do you think the
stimulus package will have on the
california economy?
20 ethics Corner
Carol M. Langford
22
Classifieds
inside
2009 BOARD of DIRECTORS
Larry Cook President
Ron Mullin President-Elect
Kathy Schofield Secretary
Audrey Gee Treasurer
Robin Pearson Ex Officio
Leigh Johnson
Christopher Bowen
Kristen Thall Peters
Oliver Bray
Ron Rives
Mike Brewer
Dana Santos
Jay Chafetz
Stephen Steinberg
Virginia George
Candice Stoddard
Peter Hass
CCCBA EXECUTIVE DIRECTOR
Lisa Reep: 925.288-2555 • [email protected]
CCCBA main office: 925.686-6900 • www.cccba.org
Jennifer Comages
Membership Coordinator
Maria Navarrete
LRIS Coordinator
Emily Day
Systems Administrator and
Fee Arbitration Coordinator
Barbara Tillson
Moderate Means Program
Coordinator
Michele Vasta
Section Liaison / Education
& Programs Coordinator
Manny Gutierrez
Administrative Assistant
and Legal Interviewer
Contra Costa Lawyer
EDITOR
Candice Stoddard
925.942-5100
ASSOCIATE EDITOR
Nancy J. Young
925.229-2929
BENCH LIAISON
Hon. Mary Ann O'Malley
925.646-4001
BOARD LIAISON
Candice Stoddard
925.942-5100
COURT LIAISON
Kiri Torre
925.957-5607
ADVERTISING/DESIGN
Young Design & Production
925.229-2929
PRINTING
Excel Graphics
925.552-9998
PHOTOGRAPHER
Moya Fotografx
510.847-8523
EDITORIAL BOARD
Kate Bekins
925.284-0480
Mark Ericsson
925.930-6000
Matthew P. Guichard
Local Civil Jury Verdicts
925.459-8440
Nicole Mills
925.351-3171
Craig Nevin
925.930-6016
David Pearson
925.287-0051
Erika Portillo
925.459-8440
Andy Ross
925.296-6000
Kathy Schofield
925.253-7890
Audrey Smith, JFK Liaison
925.969-3561
Harvey Sohnen
925.258-9300
Marlene Weinstein
925.942-5100
The Contra Costa Lawyer (ISSN 1063-4444) is published
monthly by the Contra Costa County Bar Association (CCCBA),
704 Main Street, Martinez, CA 94553. Annual subscription of $25
is included in the membership dues. Second-class postage paid
at Martinez, CA. POSTMASTER: send address change to the
Contra Costa Lawyer, 704 Main Street, Martinez, CA 94553.
The Lawyer welcomes and encourages articles and letters from
readers. Please send them to Nancy J. Young, Associate Editor,
Contra Costa Lawyer, P.O. Box 1867, Benicia, CA 94510.
The CCCBA reserves the right to edit articles and letters
sent in for publication. All editorial material, including editorial
comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of
the CCCBA or the Board of Directors. Likewise, the publication
of any advertisement is not to be construed as an endorsement
of the product or service offered unless it is specifically stated
in the ad that there is such approval or endorsement.
4
by Kristen Thall Peters
Last year, when the Real Estate Section sponsored its edition of the Contra Costa
Lawyer, our contributing authors expressed concern over the state of California’s real
estate market and the adverse impact it would have on our overall economy. Although
the downturn was noted as unprecedented, although not wholly unexpected, the
economic downward trend in the market was thought to continue through 2008,
and possibly beyond.
Did any of us truly imagine how much further we would fall in this past year? In last
year’s edition, we discussed that interplay between real estate, bankruptcy and foreclosure — as well as some more traditional remedies — can be used when property
values decrease. But while bankruptcies continue to increase, fewer property owners
find filing a productive method to keep their property since the value is not likely to
increase, and may even decrease, during the stay.
In the past year, sales and leasing transactions have significantly slowed as a result of
so many prospective purchasers and tenants waiting for the market to hit bottom.
Unfortunately, many commercial and residential property owner clients are inclined
to give the decreasing investment back to the lender in lieu of trying to hang on to
the investment. Lenders are also inclined to lay low — partially because of having to
reserve against their losses, and partially because of higher underwriting standards
— further diminishing the ability to finance a transaction, even if a player were inclined
to jump in.
Often, as the markets for transactions decrease, litigation increases. However, having
heard from fellow members of our Bar Association, the trend is not occurring in this
economy. Feedback from many clients indicates that litigation is an expensive risk, and
they would rather walk away from a claim than pursue it with the uncertainty of
obtaining an award…or of collecting on it.
Nevertheless, there are signs that a turnaround, albeit a slow one, may have finally
arrived. As of April (when this edition was being submitted for publication), I have
recently closed three industrial and commercial lease transactions, the sale of a com-
Attorney Counseling Evenings
The CCCBA offers ACE Nights in various subject matters, such as family, landlord/tenant and
immigration law. The programs are only two hours in length. They have been an invaluable service to
the community — and the feedback received has been fantastic!
If you are interested in volunteering for an upcoming ACE event, please contact CCCBA’s Michele
Vasta at 925.370-2548 or [email protected].
June 2009
munications tower facility, and the purchase of a landfill gas-to-power facility.
Moreover, two separate national tenants
are vying for lease of a client’s property,
which has been vacant since Tower Records
filed for bankruptcy two years ago. I have
heard from other transactional attorneys
that they, too, are starting to get busy.
Hopefully, the litigators will soon follow.
This trend, and the stimuli behind it,
creates unique challenges for the legal
community at large in our county, and this
edition features articles addressing the
stimuli, trends and challenges from a local
perspective. The effects of the American
Recovery and Reinvestment Act of 2009
and other stimulus packages (collectively,
the “Stimulus Acts”) are addressed in
articles by Kathleen Carpenter and Jim
Melino. Our members’ thoughts on
whether the Stimulus Acts will work are
detailed in Question Man, while commercial unlawful detainer actions are discussed
in an article by Geoffrey Steele. Finally, as
the market wakes up again, we will be
faced with new dis­closure laws as described
in an article by Mailana Mavromatis.
However, as noted by Kathleen, because
the Stimulus Acts are so broad, the team to
advise your clients needs to be experienced
in a wealth of different areas. Fortunately,
members of our bar are a group of both
friendly and knowledgeable lawyers,
making the task of developing alliances
within our community an easy one.
In conclusion, I’d like to thank the contributing authors who have taken time
away from their busy practices to con­
tribute to what I believe is an interesting
and thought-provoking edition of the
Contra Costa Lawyer. I sincerely hope that
you enjoy this real estate edition. u
— Kristen Thall Peters is a partner of Cooper,
White & Cooper LLP, resident in the firm’s
Walnut Creek office. She is co-chair of the firm’s
Green Practice Group and practices real estate,
land use, environmental and business law. She
can be reached at [email protected].
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5
judicial profile
LEWIS A. DAVIS was born on September
25, 1948 in Washington, DC. In 1970,
he received his BA in Philosophy with
honors at Clark University. As a graduate
student in philosophy at Georgetown
University, he was a University Fellow
and an instructor of philosophy at a
junior college in the D.C. area. Then in
1981, he received his JD at McGeorge
School of Law.
Pre-bench legal experience Assistant
US
Attorney, 1990–2006 (Directors Award,
Senior Litigation Counsel, Training Director, and Discovery Compliance Officer);
Deputy District Attorney, Alameda
County, 1984–1990 (Homicide Division);
Executive Officer of the California Commission for the Revision of the Juvenile
Court Law, 1983.
Political affiliation Republican.
Judicial experience P ittsburg
Branch
Court; Richmond Branch Court; Juvenile
Hall and Pittsburg Drug Court (June
2008 to present).
Current civic and professional activities
Contra Costa Committee, Diversity on the
Bench — produced judicial mentoring
handbook to promote diversity; Vice Chair,
Judicial Council Court Security Education
Committee; Robert G. McGrath Inn of
Court (2007–2008).
Continuing legal education faculty
Governing Committee of the Center for
Judicial Education and Research; Violence
Against Women Education Project Planning
6
Lewis A. Davis
Committee; Instructor, Domestic Violence
Institute for Judges (2008).
Recent publications Consultant, California
Judicial Benchbook — Domestic Violence
Cases in Criminal Court, 4th ed. (2007).
Courtroom information Department 13,
Room 104, Juvenile Hall, 202 Glacier
Drive, Martinez; 925.957-5355, fax:
957-5356. Court Reporter: Renee Smith;
Clerk: Kiesha Malone; Bailiffs: Mark
Emery and Lou Willett.
Typical weekly schedule Detention
hearings, pretrial conferences, placement
reviews, motions to vacate and terminate
probation, status reviews: Monday–Friday
mornings, and Wednesday afternoons.
Contested hearings: Monday, Tuesday and
Thursday afternoons. Drug Court (Pittsburg): Friday afternoons.
Courtroom policies Judge Davis generally
rules from the bench. In addition to motions
in limine and jury instructions, any antici­
pated issues should be addressed with the
court prior to trial commencement.
Teleconferencing Currently,
teleconfer­
encing is not permitted.
Motions A courtesy copy should be deliv-
ered to the court at the time a motion is
filed.
Discovery The
judge requests counsel
adhere to strict compliance with PC 1054,
et seq, and other duties as required by law.
Judge Davis has given the late discovery
jury instruction (CALCRIM 306).
In limine motions Judge Davis would like
these to be provided the day of trial and
supported by case authority.
Voir dire Voir dire is conducted primarily
from the bench, with 15–30 minutes
allotted per party. Additional time is
permitted if necessary at the court’s dis­
cretion. Six-pack method. (Not applicable
in juvenile cases.)
Jury instructions Complete instructions
to be provided by the parties on the first
day of trial. Two jury instruction con­
ferences will be held. (Not applicable in
juvenile cases.)
Sanctions The
judge has, on rare occasions, issued expedited contempt per
CCP 177.5.
Decorum Counsel should be polite, should
not interrupt, and should not make speaking objections.
Computers and AV in the courtroom
Counsel may use their own equipment
with prior notice.
Cameras in the courtroom The judge does
not allow cameras in his courtroom.
Advice Please
be prepared, with appro­
priate case authority to support legal
assertions, and be courteous. Counsel
should notify the clerk if running late to
court. u
— Judge Davis was interviewed by Ross
Pytlik of Gagen, McCoy, McMahon, Koss,
Markowitz & Raines.
June 2009
The Real Estate Section
2009 Board of Directors: Kristen Thall Peters, President; Mailana G. Mavromatis, Vice President; Pippin C. Brehler, Secretary-Treasurer;
Patrice P. Suberlak, Program Chair; John Barnard, Director-Election Officer; James A. Melino, Past President
The CCCBA Real Estate Law Section is a group of highly involved and dedicated attorneys working together to further the education
of its membership and foster relationships among its members and other sections. This section sponsors an MCLE breakfast the third Friday
of each month at Scott’s Restaurant in Walnut Creek at 7:30am, which is free to section members and $25 to non-members. Speakers are
leaders in their specific real estate practice areas. Membership is open to all CCCBA members and we welcome your participation.
Thanks to the following Real Estate Section members who have made our section so successful:
Magany Abbass
Muslimah Alabi
Kari Amable
Martin Ambacher
David W. Anderson
James Arnold
Robert Aune
David M. Austin
Cecily Talbert Barclay
Williem J. Bard
John Barnard
Daniel P. Beaver
Robert Belzer
David H. Blackwell
Gina D. Boer
Richard Bowles
Kenneth Brans
Pippin C. Brehler
Roger Brothers
Michael Brown
Christopher Brown
Jeffrey Brown
Jason S. Buckingham
Denae Hildebrand Budde
Gregory Caligari
Mark A. Cameron
Emelyn Jewett Carothers
Scott E. Carter
John F. Cavin
Julie V. Chan
Robia S. Chang
Jeffrey A. Chen
Timothy Clack
Michael J. Cochrane
Bruce Cornelius
Rex L. Crandell
Patricia E. Curtin
Ann M. Dalsin
Craig E. Davis
Randall S. Davis
Dana Dean
William C. Deanhardt
Linda DeBene
Laurie A. Dennen
Susan G. Diamondstone
Nancy L. Douglas
Lisa S. Doyle
JoAnne L. Dunec
Michael Patrick Durkee
Lisa Edgar-Dickman
Liana C. Epperson
Mark D. Epstein
Vahishta Falahati
Ellen R. Fenichel
Robert C. Field
William S. Fiske
Sidney S. Fohrman
Justin M. Fossum
Michael Framé
Corinne N. Fratini
Ethan K. Friedman
Chad A. Gallagher
Mariah Panza Garcia
John Gardner
Gary Garfinkle*
Audrey Gee
Steven Geller
Joshua Genser
Stuart C. Gilliam
Eleanor A. Gladstone
David Gold
Charles S. Goldman
Christopher J. Gonzalez
Bruce Reed Goodmiller
Ella K. Gower
Jason J. Granskog
Rick Greco
Michael Greene
Beth Grimm
Jan A. Gruen
Brian H. Gunn
Denise Hannan
Elva D. Harding
Michael Hardy
K.P. Dean Harper
Ira James Harris
Michael G. Harris
Lawrence D. Harris
Peter A. Hass
Craig Hassler
Stephanie J. Hayes
David Hermelin
Ted Highland
Steven N. Holland
Matthew T. Holman
Scott C. Honegger*
Clifford R. Horner*
Robert Huddleston
Nicholas Hulchiy
Christy L. Hunsberger
Christopher J. Hunter
Elizabeth K. Hwang
Robert B. Jacobs
Barbara Duval Jewell
Leslie A. Johnson
Jeff Johnston
Shannon Ball Jones
Giselle A. Jurkanin
Steven J. Kahn
David L. Kanel
Geri M. Kaye
Debra Keller
Richard E. Korb
Kevin Lally
Kevin J. Lane
David J. Larsen
Virgil A. Lawrence
Kristina D. Lawson
Hubert Lenczowski
Kenneth D. Little
H. Clyde Long
Laura S. Lowe
Sandra Lowenstein
Christopher Lucas
Robert S. Luther
Martin Lysons
John MacMillan
Camarin Madigan
G. Kevin Mallett
Bonnie C. Maly*
Peter A. Mankin
Silvano Marchesi
Rodney Marraccini
Bethany N. Marshall
Mailana G. Mavromatis
Andrew J. McCall
Gil Medeiros
Steven Mehlman
James A. Melino*
Kenneth Miller*
Robert A. Miller
Kevin P. Montee
Michelle L. Moore
Marilyn Morris
John B. Morrow
Daniel Mueller
Daniel A. Muller
Brian P. Mulry
William Murray
William Nagle
Roberta E. Nalbandian
Tara Castro Narayanan
Craig S. Nevin
Katherine R. Oberle
Janine Ogando
Andrea L. O’Toole
Thomas P. O’Toole
Thomas H. Pacheco
Shirley A. Parker
John Patton
Dennis R. Pedersen
H. Ray Peffer
Kristen Thall Peters*
Hanh T. Pham
Robert D. Postar
Douglas K. Poulin
James Ramsaur
Mitchell S. Randall
Allen Ratcliffe
Judith Rathbone
Robert Rich
Robert W. Richardson*
Gary R. Rinehart
Bruce E. Ring
Ronald Rives
Rebecca Romero-Vigil
Gary Rosenberg
David L. Roth
Ric Russell
Hussein Saffouri
Stacie S. Sandifer
Peter T. Saputo
Kristin Schenone
John W. Schilt
Maurice P. Schwartz
Christopher J. Schweickert
Brian Seibel
Andrew W. Shalaby
Robert Sheldon
W. Scott Shepard
Malcolm Sher
Jean Shrem
Robert J. Silverman
Scott W. Singer*
Sanford Skaggs
Monica Lynn Sloboda
Wayne V.R. Smith
Victoria Robinson Smith
Lewis J. Soffer
George Speir
James Martin Sproul
Adam M. Starr
Geoffrey Wm. Steele
Candice Stoddard*
James Straw*
David B. Stromberg*
Patrice Suberlak
Rodney Sweet
Andrew E. Tanenbaum
Stephen Thomas
Howard M. Thomas
Heidi A. Timken
Jon Tonsing
Suzette Z. Torres
James Trembath
William J. Trinkle
Dana C. Tsubota
Thomas Tunny
Karen Turk
Derek S. Van Hoften
Michael John Veiluva
Sigrid R. Waggener
Jeffrey G. Wagner
Nicholas B. Waranoff*
Len Watkins
Christopher C.M. Waud
Glenn Wechsler
Steven Weil
Katherine A. Wenger
Kevin Worth Wheelwright
James Wickersham
Alan J. Wilhelmy
Todd A. Williams
Steven J. Willock
Phil Winslow
Matthew K. Wisinski
Steven N.H. Wood
Lynne M. Yerkes*
Jordan Yudien
*Indicates past presidents. If you notice a past president who is not identified, please email ktpeters@ cwclaw.com so we can update our list.
Contra Costa Lawyer
7
Money doesn’t talk, it swears . . .
A Snapshot of How the Economic Stimulus Bill
Impacts the Homebuilding and Construction Industries
by Kathleen F. Carpenter
D ecades ag o , Groucho Marx
observed, “It isn’t so much that hard times are
coming; the change observed is mostly soft times
going.” The American Recovery and Reinvestment Act of 2009 (the “Stimulus Act”),
passed by Congress and signed into law by
the president on February 17, 2009, includes
a number of provisions specifically intended
to “revitalize” our economy. The bill itself
is a mind-numbing 1588 pages in length
and provides an infusion of about $800 billion into our economy. The purpose of this
brief article is to preview some of the key
provisions benefiting the homebuilding, real
estate and related construction industries,
along with noting some key resources that
provide more in-depth information in order
to keep up to date in this evolving arena.
Where is the Money Going?
The $787 Billion Economic Stimulus
Package – February 2009
•$288 billion: “tax relief”
•$144 billion: state and local municipalities
•$111 billion: infrastructure and science
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•$81 billion: poor and unemployed
•$59 billion: health care
•$53 billion: education and training
•$43 billion: energy
•$8 billion: other
The $275 Billion Mortgage Stimulus
Package – February 2009
•$200 billion: more help for Fannie Mae and
Freddie Mac
•$75 billion: direct assistance to homeowners
in distress
See http://www.readthestimulus.org/
How Will The Money Create Jobs
to Improve Infrastructure?
The Stimulus Act includes an approximately $150 billion investment in our
nation’s infrastructure. Much of the $150
billion is being directed toward construction projects. For instance, approximately
$40 billion will be allocated to the repair
and maintenance of roads, bridges, dams,
ports, rail, airports, and water systems.
Most of these funds will be distributed to
state departments of transportation or to
federal agencies who will decide how the
money will be spent, but there is hope that
the funding of these projects may decrease
the amounts required by homebuilders in
the future to offset impacts of development
prior to obtaining entitlements for the
construction of new homes.
Funds will also be allocated to individual states for various projects, including
modernization, renovation, and repairs of
facilities at public schools and institutions
of higher education. In addition to potentially decreasing the amounts required by
homebuilders in the future, the infusion
of cash into our schools also has the prospect of increasing property values and,
thus, sales prices of new homes.
One of the most concise summaries of
information comes from The Associated
General Contractors of America website,
which provides a state-by-state stimulus
impact chart (http://www.agc.org/cs/
industry_topics/construction_economics/
state_by_state_stimulus_impacts).
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June 2009
Energy Efficient Communities and
the Creation of Green Collar Jobs
A very significant part of the Stimulus
Act includes allocation of money to promote energy efficiency in both existing
and new construction. For example, the
Stimulus Act allocates funds to make
federal and local government buildings
more energy efficient and establishes a
program to competitively award funds to
make energy efficient improvements
(including upgrading insulation, windows
and furnaces) to HUD-sponsored housing.
The Stimulus Act also provides $6.3 billion
to state and local governments to make
investments in energy efficiency.
The most interesting and creative use
of the Stimulus Act funds for home builders may be those uses that extend beyond
the tax incentives for making investments
to increase energy efficiency and into energy
production. With the landscape already in
motion creating “green” communities all
over the state, there is also a plethora of
tax credits and incentives for the actual
production of alternative energy sources.
The incentives to make direct investments
in energy-related projects are bringing into
reality the creation of the mixed-use, urban
or suburban community designed to
include a compact power clean “facility”
capable of providing renewable energy
and perhaps even clean processing of all
the waste produced on site. In areas where
development is surrounded with farmland,
neighboring rural areas traditionally used
only for food-source crops may become
increasingly popular as a source of localized
energy production for new communities.
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MEC 2718 Contra Costa Lawyer Mag 4.6875x4.5625_v5.indd 1
8/15/08 3:22:36 PM
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Are There Already Signs of Life
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The Stimulus Act has many provisions
designed to give a boost to the real estate
and housing industry. Some direct investments will be made to help various communities that have been hit hardest by high
foreclosure rates. It also includes numerous
other provisions designed to boost the
housing industry, such as increasing and
expanding the tax credit for first-time
homebuyers with incomes up to $75,000
for single taxpayers and $150,000 for u
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Walnut Creek, CA 94598
Telephone (925) 945-7722
Facsimile (925) 932-1491
10
married couples, to 10% of the home’s
purchase price up to $8,000 for homes
purchased during 2009. Moreover, this tax
credit is different from prior tax credits
in that it does not have to be repaid so long
as homebuyers use the home as a primary
residence for at least three years. It also
allows state housing finance agencies to
help buyers at closing by advancing the
credit as a loan.
The Stimulus Act also extends a pre­
viously-enacted law that increased loan
limits to $729,750 for FHA, Fannie Mae
and Freddie Mac mortgages through 2009,
which will help homebuyers in “high-cost”
markets (an appropriation of $2 billion in
HOME Investment Partnerships Act
funding for affordable housing projects).
In fact, as of April 22, banks were
struggling to keep up with the mortgage
demand from first time homebuyers seeking to obtain these new credits. (See http://
www.abc.net.au/news/stories/2009/04/
20/2547788.htm.) In California, we currently have an additional tax credit equal
to either 5% of the purchase price or
$10,000 (whichever is less) for new home
purchases by qualified buyers who — on
or after March 1, 2009, and before March
1, 2010 — purchase a qualified principal
residence that has never been occupied.
Application must be made within seven
calendar days after the close of escrow via
fax only. Although, at the time of this
writing, no tax credits had yet been allocated by the FTB, applications for approx­
i­mately one-third of the credit had been
received but not yet processed. (See http://
www.ftb.ca.gov/individuals/New_Home_
Credit.shtml.)
In another effort to help the housing
industry, the president proposed the
Homeowner Affordability and Stability
Plan to modify the loans of certain at-risk
borrowers who are struggling to make
their mortgage payments.
special bonus depreciation provision
allowing depreciation of one-half of the
cost of eligible property placed in service;
(2) an extension through 2009 of the
$250,000 limit for Section 179 expensing
for new or used equipment placed in
service during a particular tax year (in
2010, the Section 179 expensing limit
will revert to $133,000); and (3) for
eligible business taxpayers with average
gross receipts of less than $15 million
over the three tax years prior to 2008, an
extension of the two-year carry back of
net operating losses to five years for losses
generated from a tax year beginning or
ending in 2008.
Don’t Think “Show Me the Money,”
It's Here Now
Keep in mind that many of the provisions
in the Stimulus Act were designed to make
an almost immediate impact on the construction and real estate industries, and
are already being put to use. Any company
failing to examine how its business can
take advantage of the Stimulus Act may
miss these critical opportunities. For
example, shares of Genworth Financial
Inc. lost nearly a fifth of their value on
April 13 after the insurance company
missed a key deadline, rendering it ineligible to participate in the government’s
$700 billion financial rescue program.
With the immediate impact sought to
be achieved by the Stimulus Act, prac­
titioners should be familiar with it and
be prepared to advise their clients of its
impacts and effects. In addition, because
the Stimulus Act is so broad, the team to
advise your clients may need to be experienced in a wealth of different areas and
outside consultants. Fortunately, members
of the Contra Costa County Bar Association are a very congenial and knowledgeable group of lawyers, making the task
of forming alliances within our community
an easy one. u
One Notable Tax Benefit
There are a myriad of provisions included
in the Stimulus Act that may also benefit
the real estate and construction industry.
For example, the Stimulus Act includes:
(1) an extension through 2009 of the
— Kathleen F. Carpenter is Chair of
Cooper, White & Cooper LLP’s Home
Building Industry Practice Group,
and a member of its Subprime Credit
Crisis and Green Practice Groups.
June 2009
District 3 Bar Associations Endorse
Cheryl L. Hicks
for State Bar Board of Governors
The Contra Costa County Bar Association is pleased to endorse Cheryl L. Hicks to represent District 3 on
the State Bar Board of Governors, which oversees the organizational, policy and professional issues of the
State Bar of California. District 3 includes Alameda, Contra Costa, San Mateo and Santa Clara counties.
At its April 1, 2009 meeting, the CCCBA Board of Directors unanimously passed a resolution endorsing the
candidacy of Cheryl L. Hicks for State Bar Board of Governors District 3 Representative.
Despite a bustling private practice in Oakland, where she specializes in juvenile dependency, family law,
and plaintiffs personal injury law, Ms. Hicks still manages to generously contribute her time and talents
outside her practice. She is past chair of the ACBA Civil Court Appointed Attorneys Program (CCAAP), and
is still active in the program.
Ms. Hicks also served on the ACBA Board of Directors for six years, including serving as president in 2007.
During her presidency, she worked tirelessly to promote diversity and inclusiveness at all levels of the
profession. Ms. Hicks was also instrumental in the creation of the Judicial Mentoring Project, a project
of the ACBA and the East Bay Diversity Bar Coalition, designed to give attorneys, especially women attorneys
and attorneys of color, interested in a career on the bench valuable information and insight on the
application and appointment process by pairing them with judicial mentors. The Contra Costa County
Bench/Bar Diversity Committee replicated this program in our county and now offer a Judicial Mentoring
Program with a similar emphasis.
More recently, Ms. Hicks was honored with the State Bar of California Solo & Small Firm Practice Section
Meyer J. Sankary Lawyer of the Year Award, which is presented to an individual solo lawyer who has exercised
notable leadership or shown a contribution to the development of greater justice in a field of law.
In 2001, the CCCBA became a party to the District 3 agreement, where local bars take turns presenting a
candidate based on a rotation cycle in proportion to the attorney population in their respective counties.
The agreement helps ensure that each county, regardless of size and number of attorneys, has the opportunity to elect a representative to the Board of Governors. Per the District 3 agreement, the San Mateo,
Santa Clara, and Alameda County Bars are also endorsing Cheryl L. Hicks for District 3. Ballots were mailed
to State Bar members on April 30, and voting will continue until June 30.
Contra Costa Lawyer
11
The American Recovery and
Reinvestment Act of 2009
By Jim Melino
President Obama signed the American
Recovery and Reinvestment Act (“Act”)
of 2009 on February 17, 2009 — bold
legislation designed to stimulate the U.S.
economy in the wake of the economic
downturn brought about by the ripple
effects of the subprime mortgage crisis
and resulting credit crunch. The scope
and terms of the Act were the subject of
a raging debate within Congress and
throughout the country. The legislation
will have far-reaching impacts on the
construction industry at federal, state,
and local levels, and will ultimately control
the fate of many infrastructure projects
that are “shovel ready” but lacking funding. This article summarizes the key
funding provisions within the Act that
affect the construction/infrastructure
sector and reviews a few of the contentious
points in the roiling debate about the
legislation.
The Act contains approximately $800
billion of federal government stimulus,
including federal tax cuts ($288 billion),
state and local tax cuts ($144 billion), as
well as investments in education ($53
billion), health care ($59 billion), protecting the vulnerable ($81 billion), energy
($43 billion), and infrastructure and sciences ($111 billion). Included in the tax
relief are additional resources that bring
the total stimulus for infrastructure and
science up to $126 billion.
With respect to infrastructure-related
projects, the Act provides:
• Investments in education to local school
districts, including Title I programs, IDEA
programs, a new school modernization
and repair program, and an education
technology program.
12
• Investments in heavy infrastructure,
including the modernization of federal
and other public infrastructure with
investments that lead to long-term energy
cost savings, highway construction, clean
water, flood control, and environmental
restoration investments, and transit and
rail to reduce traffic congestion and gas
consumption.
• Energy investments, including an electric
smart grid, renewable energy tax cuts, and
weatherizing modest-income homes.
The bill requires recipients of funds
(including applicable state agencies) to
publish a “plan” for using the funds. The
plan must explain, among other things,
the purpose, cost, rationale, net job creation, and contact information about the
plan. The information is to be posted at
www.recovery.gov so that it can be subject
to public review and comment. Inspectors
General from each department or executive
agency will be expected to review concerns
that may be raised by the public.
Not unexpectedly, the Act received
mixed reviews from leading commentators
and economists. University of Texas
economist James Galbraith suggests,
“Given the depth of the crisis and the lockup of the financial system, [the Act] is not
an end-point, only a start.” He believes
that another package will be needed and
that “strategic investments in mass transit
and other long-term improvements . . .
should be authorized via a permanent
National Infrastructure Fund.”
Michael Oppenheimer, a professor of
geosciences and international affairs at
Princeton University, believes that, on
energy and environment, “The stimulus
plan needs to fulfill long-term goals, as well
as provide a short-term rescue. If the rescue
package cements in the existing world, the
necessary transition to a ‘green’ economy
will be far more difficult to achieve later.”
By way of example, Mr. Oppenheimer
points to the trade-off between building
new highways and expanding/maintaining
mass transit capacity. He notes that
although both are “shovel-ready,” only one
“supports the emergence of a green economy
while the other just ossifies the existing
patterns, which are a big part of our economic and international problems in the
first place.” Similarly, he believes a complete
overhaul of our electricity grid is necessary
to make renewable energy a reality. “Without the new sources of energy, there’s less
need for the modernized grid but without
the new grid to distribute it, many entrepreneurs will think twice about investing
in solar or wind power. It’s the government’s
job to jump start the process.”
The American Society of Civil Engineers (“ASCE”) generally supports the
stimulus package, but doesn’t believe the
Act goes far enough. The ASCE believes
that decades of underfunding and inatten­
tion have endangered the nation’s infrastructure, and that government will need
to invest approximately $2.2 trillion in
repairs and upgrades (supplemental to
long-term programs) over the next five
years. ASCE reports this conclusion in its
new 2009 Report Card for America’s
Infrastructure, which assigns an overall
grade of a “D” to the nation’s infrastructure. The 2009 Report Card offers detailed
guidance from professional engineers on
where funds would best be spent.
In its November 2008 report, the
ASCE set forth the following principles
June 2009
that it believes should be applied in selecting projects to receive funding under the
Act: (1) The project should deliver measurable improvements in public health,
safety and quality of life; (2) The project
should provide substantial, broad-based
economic benefit; (3) The project should
be designed and built in a sustainable and
cost-effective manner, and proper consideration must be given to life-cycle costs;
and (4) The project should have a significant environmental benefit such as area
restoration, improved air quality through
reduced congestion and better watershed
management through eliminating vulnerabilities in a system.
Regardless of where commentators and
elected officials fall on the continuum of
funding within the Act, some type of
stimulus (either through tax cuts or direct
funding) will impact the status of heavy
civil infrastructure projects throughout
the nation — in California generally, and
in the Bay Area and Contra Costa County.
These projects present many complex legal
issues that cross over a number of practice
areas falling within the purview of the Real
Estate Section, including real estate/
eminent domain law (e.g., where right of
way for highway or light rail projects is
acquired through eminent domain proceedings); construction law (e.g., where
contractual risk transfer provisions are
subject to Public Contract Code requirements); and environmental law (e.g., most
large infrastructure projects are subject to
California Environmental Quality Act
[CEQA] and National Environmental
Protection Act [NEPA] requirements,
among others). Such legal issues will
inevitably impact the practices of many
attorneys within the county on a number
of these projects such as the Caldecott
Tunnel Fourth Bore Project, the BART/
Oakland Airport Connector Project, and
the California High Speed Rail Project. u
— Jim Melino, partner with
Bell, Rosenberg & Hughes
LLP and immediate past
president of CCCBA’s Real
Estate Section, can be reached
at jmelino@ brhlaw.com.
Contra Costa Lawyer
Sometimes it takes both knowledge and determination.
Palmer Madden
925.838-8593 • www.adrservices.com
Over 25 years’ experience as an ADR neutral
Experience without Administrative Fees
The Law Offices of David M. Lederman
David M. Lederman
Certified Family Law Specialist
Tom Smith
Associate Attorney
State Bar Board of Legal Specialization
Practicing exclusively in all aspects of Family Law
in Walnut Creek and Antioch
3432 Hillcrest Avenue • Suite 100 • Antioch, California 94531
309 Lennon Lane • Suite 102 • Walnut Creek, California 94598
Phone 925.522-8889 • Fax 925.522-8877
www.ledermanlaw.net
13
Question man
What impact do you think the stimulus
package will have on the California economy?
I think the impact will be more
psychological than fiscal. For those
who like this sort of thing, it is
the kind of thing they will like.
Not much — but one can
hope and dream!
Nobody is savvy enough to predict all future ramifications of
interventions into the market.
That being said, doing nothing
is an intervention. The final
results of the well meaning
venture of the stimulus package will not
be known for a long time, but I am hopeful for a temporary return to prosperity.
Jessica A. Braverman
A. G. Ashe
Tom Cain
Solo, Walnut Creek
Braverman Mediation
& Consulting
Not very much! Most folks just don’t
understand it. Most benefits will go
to governments and not to individuals. Most projects will be public
works and not private projects.
Wayne V. R. Smith
Attorney and Mediator
You mean when they start spending the
money two years from now? Hard to see
that far ahead. Or, do you mean when the
interest payments start
coming due from my kids
and grand kids? Not hard
to see that far ahead.
Kurtiss Jacobs
Law Office of Anthony Guy Ashe
There has been an obvious, serious deterioration in the California
business picture. There are some
signs that the real estate market
is bottoming, some life in the
stock market, and some more
bankruptcies probably in the mid-west,
so the stimulus is only a very good injection
into California, probably notable in the
next nine months.
Marc Bouret
Bouret ADR & Mediation Firm
The federal stimulus has already saved
California from massive cuts that would
have deepened the recession, and put a
few dollars in consumers’ hands. However, it won’t be enough. An avalanche
of foreclosures is now starting after a brief
moratorium, which will pull property
prices, banks and jobs down in a spiral
until solved. Government help is needed
at the source — to stem foreclosures by
refinancing homes with negative equity
with loans at the home’s true market price,
perhaps secured by the government taking
an interest in the upside appreciation.
Michael S. Strimling
Bramson, Plutzik, Mahler & Birkhaeuser, LLP
Solo, Concord
Little to none. This is a spending,
not stimulus, package.
David Austin
McNichols Beers LLP
Must fight being a cynic. Losing battle.
The “Stimuli packages” will have the same
effect in California as nationally: $1.00
= 10¢ within two years and government
controlling 75% of the national economy
(100% in California). Where is John Galt
when we need him? (For those
unaware, read Ayn Rand’s Atlas
Shrugged. It is coming true.)
Dan G. Ryan
Law Office of Dan G. Ryan
LAW OFFICES OF
DOUGLAS A. PRUTTON
Representing employees only in all types of
labor and employment matters, including
wrongful termination and overtime claims.
Free consultation, contingency fees,
costs advanced, 26 years experience.
1866 Clayton Road n Suite 211 n Concord
(925) 677-5080
925.790-2600 • [email protected] • www.amllp.com
14
[email protected]
June 2009
is pleased to announce the fourth never annual
Trivia Bowl for Access to Justice
in support of The BAR FUND
Friday, October 2, 2009
6:00 – 9:30pm • Blackhawk Museum (a.k.a. Behring Auto Museum)
Master of Ceremonies Tom Beatty
Judge Hon. Norm Spellberg (ret.)
Game Show Host Brian Bonney
$75 per person - $750 reserved table for 10
~ or ~
$100 per person for Sponsors / $1,000 Patron table for 10 (includes recognition in event program)
$500 to enter a team of 3 (100% of team entrance fees may be taken as charitable tax deduction1)
Enter a team to compete against law firms and retired judges, or put together an “All Star” team of your
trivia-savvy colleagues to compete for the perpetual trophy. Trivia categories will include: literature,
science & technology, history & geography, arts & entertainment, sports, local legal lore, and obscure legal questions.
This year we also have a special category of questions in keeping with our “Auto” themed venue.
Deadline to enter team – September 1!
Even if you don’t compete in the Trivia Bowl, support The BAR FUND and cheer on your favorite team by
signing up as an individual or purchasing a table of 10! Don’t miss this unique, entertaining and fun-filled event.
Maserati Sponsor
JAMS
Ferrari Sponsors
Carroll, Burdick & McDonough, LLP • Certified Reporting Services • The Recorder
To Register: Call Michele Vasta at 925.370-2548 with your Visa, MasterCard, American Express, or Discovery Card,
email her at [email protected], or send your check, payable to CCCBA, to 704 Main Street, Martinez 94553.
For further information, or to receive a complete set of Trivia Bowl rules:
Contact Lisa Reep at 925.288-2555 or [email protected]
Space limited - Sign up now!
East Bay Community Foundation (EBCF), a tax-exempt 501(C)(3) charitable organization, administers the CCCBA’s “The BAR FUND”.
However, ECBF is not coordinating or sponsoring this event. For the purpose of tax-exempt charitable contributions to The BAR FUND,
including the team entrance fee, EBCF’s tax identification number is 94-6070996.
1
Contra Costa Lawyer
15
Commercial Unlawful Detainers:
How to Avoid Evictions in a Recession
by Geoffrey Steele
The reality: Current economic times
are extremely difficult for retailers and
white-collar companies that expanded
during the boom of the last 10 to 15 years.
Now they find themselves with either
more space than they need or higher rent
than they can afford. As those companies
expanded and took more and more space
in your client’s building, they may have
created a situation that — from your
client’s perspective, and to quote the
current Secretary of the Treasury — they
may be “too big to fail.” The result: Your
client may now be left with unprofitable,
unproductive, empty space.
So what to do? The legal fees and costs
for a commercial unlawful detainer action
can quickly add up and leave your property owner client no better off. Now s/he
not only has an empty space, but large
legal bills and court costs as well.
One possible solution: be proactive.
Since a landlord has an unfettered right of
inspection within a commercial premises
[Lopez v. Superior Court (1996) 45 Cal.
App.4th 705], have your client use it. Have
your client (or your client’s agent) go by
the store or firm to check for dangerous
conditions and conduct an open dialogue
with the lessee. Make sure that the inspection is subtle, but use it constructively as
a method for seeing the inventory of a retail
industry. If it appears that the back store
16
room shelves are empty and the inventory
low, maybe it’s time to sit down with the
lessee. Discuss possible cost-saving methods
for lowering current monthly payments
and adding them to the end of the lease.
If the store is part of a national chain,
contact the company’s headquarters
regarding the local store and what your
client can do to help increase sales.
If the leased space is an office building,
see how many offices are empty or how
busy the employees seem to be. This type
of interaction with the lessee will show
that your client is willing to work out
solutions instead of being put in the
position of having to deal with a future
desperate tenant (who may leave in such
a manner that does not give your client
any options but to have a vacated space
and other disgruntled tenants whose foot
traffic may drop off dramatically). Such
a scenario will decrease the value of the
remaining leased spaces.
A case in point is Home Depot’s recent
acquisition of Yardbirds. The company
announced that it was closing its lumber
and hardware locations throughout the
Bay Area. These closures are leaving
several shopping center owners (who had
just recently renovated their original
stores, redesigned them and added new
signage for Home Depot’s Yardbirds) with
a big empty space, not to mention a big
empty parking lot. The impact on some
of the surrounding tenants may be devas­
tating. Yet one savvy owner, who had just
spent considerable sums to renovate his
shopping center, went to each of the other
tenants on the advice of his counsel with
a plan to increase traffic through additional
advertising and some special events. While
it is still too early to unequivocally state
that such moves will keep all the remaining tenants in place while replacements
can be found, it showed the remaining
tenants that the landlord cared about their
specific businesses and was willing to work
with each of them individually to increase
their visi­bility in the local community.
Furthermore, it gave the landlord the
opportunity to meet with each of the businesses, creating a more personal interaction
that may well result in more open communication between the parties. The
relationship between lessors and lessees
should not be a contentious one, especially
in these current economic times.
And what if you are the tenant? In the
framework of a commercial lease, one
absolute negative is for a lessee to remain
in possession of the premises without paying rent and/or other charges, deliberately
waiting for the landlord to file an unlawful detainer action, with the purpose of
setting up some alleged circumstance for
the lessee to claim damages for some breach
June 2009
of a covenant as a defense to the unlawful
detainer [Schulman v. Vera (1980) 108 Cal.
App.3rd 552, 558]. If your firm is having
difficulty meeting its obligations, or if your
store has seen a drop off in sales because
of the closure of a local plant or layoffs in
a local industry, that is the time to discuss
your options with the landlord.
If it does become necessary to file that
unlawful detainer action, remember you
must strictly comply with the statutory
requirements [Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.
App.4th 1035]. You must review the lease
and any addendums for notice requirements. You are strongly urged to carefully
review all the forms and statutes that are
necessary to complete the notice requirements and double check that you have
complied with all the filing requirements.
Any deviation or misstep results in the
action being voided, and you would then
have to start all over again.1 u
— Geoffrey Wm. Steele,
a partner in the Walnut
Creek firm of Nevin,
Ramos & Steele, specializes in civil, business and
real property litigation.
1
Code Civ. Proc. §1161 et seq. sets forth the jurisdictional
and procedural law for unlawful detainer actions. Code
Civ. Proc. §1174 provides the court’s jurisdiction to
enter judgment for possession and to award incidental
rents and damages. Established California law holds
“that possession is the principal subject of unlawful
detainer actions and the entitlement of the plaintiff
lessor to recover damages or rents therein is wholly
dependent upon the lessor prevailing on the issue of
unlawful detainer” [Balassy v. Superior Court (1986) 181
Cal.App.3rd 1148, 1152]. Accordingly there can be no
damage award if the landlord fails to prove an unlawful detainer. [Id.] Furthermore even when the landlord
does prevail, only damages that “result from the unlawful detention and accrue during that time” are proper
[Vasey v. California Dance Co. (1977) 70 Cal.App.3rd 742,
748]. An award of rent is only allowable if the unlawful detainer is based on the nonpayment of rent [Saberi
v. Bakhtiari (1985) 169 Cal.App.3rd 509, 515]. Moreover, the award of damages for breaches of the lease
occurring before the unlawful detainer and of “future
damages” for continued unlawful possession beyond
the date of the judgment until such time as possession
is returned to the landlord are not permitted in unlawful detainer [Superior Motels, Inc. v. Rinn Motor Hotels,
Inc. (1987) 195 Cal.App.3rd 1032, 1073].
Contra Costa Lawyer
and
Mediation Center
Conservatorships
Medi-Cal Planning / Eligibility
Estate Planning
Elder Law
note
PleaseAddress 1 new ive June
ect
- Eff
Ron Mullin
Willows Office Park p 1355 Willow Way, Suite 110
Concord, California 94520
Telephone (925) 798-3413 p Facsimile (925) 798-3118
Email [email protected]
Elder Law is
The average survival rate is eight years after being
diagnosed with Alzheimer’s — some live as few as
three years after diagnosis, while others live as long
as 20. Most people with Alzheimer’s don’t die from
the disease itself, but from pneumonia, a urinary
tract infection or complications from a fall.
Until there’s a cure, people with the disease will
need caregiving and legal advice. According to the
Alzheimer’s Association, approximately one in ten
families has a relative with this disease. Of the
four million people living in the U.S. with
Alzheimer’s disease, the majority live at home —
often receiving care from family members.
If the diagnosis is Alzheimer’s,
call elder law attorney
Michael J. Young
Estate Planning, Disability, Medi-Cal,
Long-term Care & VA Planning
Protect your loved ones, home and independence.
Alzheimer’s
Planning
n
925.256.0298
www.YoungElderLaw.com
1931 San Miguel Drive, Suite 220
Walnut Creek, California 94596
17
AB2881
One Mile Radius Farmland Disclosure of 2009
by Mailana Mavromatis-Broumand
On September 30, 2008, Governor
Schwarzenegger signed AB2881 into law.
AB2881 became effective on January 1,
of this year, and amended California Civil
Code §1103.4 to require the disclosure
to prospective buyers of farm activity
within a one-mile radius of the property
to be sold.
Lawsuits against agricultural operations are becoming more prevalent as
urban development moves into agricultural areas. Hopeful homeowners who
were willing to pay the price of a long
commute to own a piece of the American
dream purchased homes adjacent to
farmlands only to find that the stink of
cows and the noise of a rooster salute at
dawn (including on the weekends) was
“offensive to the senses.” Such complaints,
however, cannot be resolved via a nuisance
lawsuit in California. California has a
history of protecting farming activities.
One example is making legal farming
activities exempt from nuisance lawsuits.
The California Court of Appeal has
upheld a trial court’s decision and appli­
cation of California Civil Code §3482.5 et
seq., a statute that exempts farming
activities from nuisance lawsuits, in Rancho
Viejo, LLC v. Tres Amigos Viejos, LLC, 100
Cal.App.4th 550 (2002). Section 3482.5
was added to the Civil Code in 1981 by
the enactment of Assembly Bill 585. The
statute provides that farming activities in
California are exempt from “nuisance”
lawsuits, however, the statute is silent with
regard to “trespass” lawsuits.
In Rancho Viejo, a residential developer
sued an avocado farmer for failure to contain irrigation water that damaged the
developer’s land. The developer alleged
that water run-off from the avocado
farmer’s watering the avocado trees was
“trespassing” on the land to be developed.
Although Civil Code §3482.5 bars nuisance
lawsuits against farmers in California, the
developer focused his argument on the
distinction between nuisance and trespass.
The developer argued that “while section
3482.5 may bar a claim for nuisance against a
farmer for the smell of his cows, it will not shield
him from liability if a cow escapes and trespasses
onto a neighbor’s property, thereby destroying or
damaging the neighbor’s property.”
The court’s primary aim in construing
any law is to determine the legislative intent
behind it, and in Rancho Viejo, the court
rejected the developer’s suit and argument
for trespass, claiming that a nuisance is not
limited to intangible intrusions upon land.
The developer could not avoid the court’s
application of the statute.
Julie Schumer
Certified Appellate Specialist
Certified by the State Bar of California Board of Legal Specialization
Motions, Appeals & Writs
30 years experience
925.254.3650
[email protected] • www.bayareaappellatelawyer.com
18
Right-to-farm laws are an important
step toward eliminating lawsuits by individuals who have moved into new housing
developments in agricultural areas, and
find that the long-established farm activity bordering their back fence is “offensive
to the senses.”
The Notice of Right to Farm/Agricultural Activity disclosure requirement in
real estate transactions is found in California Civil Code §1103.4(c)3. Civil Code
§1103 et seq. requires sellers of real estate
and their agents to disclose natural hazards
and other disclosures to prospective transferees. Section 1103.4 of the Civil Code
provides that where the seller and the real
estate agents have exercised good faith in
the selection of a third-party report provider, the liability of the disclosures will
shift to the third-party report provider.
Years after the enactment of certain
real estate disclosure statutes, a 1985
decision was rendered in Easton v. Strassburger, 152 Cal.App.3d 90 (1984). In this
landslide non-disclosure case, the court
demanded that sellers and their agents
disclose facts materially affecting the value
or desirability of a property that are known
to them or which through reasonable
diligence should be known; i.e. all material facts with or without actual knowledge
—
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Matt Toth
as in
Pedder, Hesseltine,
Walker & Toth, LLP
oldest partnership in Contra Costa County
(52 years)
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June 2009
by the seller and/or the real estate agent
must be disclosed. Under Easton, residential home sellers also have the duty to
disclose natural hazard items that are not
visible to the naked eye or commonly
known by the average homeowner. The
location of a property in or near natural
hazard zones “should be known” to its
owner by virtue of the existence of relevant
official maps, available at the Recorder’s
Office in each county. Yet sellers were not
routinely disclosing this legally required
information.
In 1997, as a consumer protection
measure, Legislator Tom Torlakson was
successful in passing a bill (AB1195) that
grouped some, but not all, of the statutorily
required hazard disclosures. This bill created
the Natural Hazard Disclosure Statement
(NHDS) §1103.2. of Article 1.7 of the
California Civil Code Section, which only
includes the following six state-wide
hazards: 1. Special Flood Hazard Areas [42
U.S.C. 4001 et seq.]; 2. Areas of Potential
Flooding due to dam failure inundation
Contra Costa Lawyer
(Government Code §8589.5); 3. Very High
Fire Hazard Severity Zones [Government
Code §§51178 or 51179]; 4. Wildland
Areas that may contain substantial forest
fire risks and hazards [Public Resources Code
§4125]; 5. Earthquake Fault Zones [Public
Resources Code §2622]; and 6. Seismic
Hazard Zones (Landslides and/or Liquefaction) [Public Resources Code §2696].
Although there were many more
material disclosures, not all were included
in the NHDS because they did not affect
all 58 counties in California or they were
not in existence at the time. These disclosure items include (among others) Military
Ordnance Sites, Industrial Use Zones, Air­
port Vicinity, Mello-Roos, Special Assess­
ments, and now Agricultural Activity
(Notice of Right to Farm).
Instead of making the NHDS a comprehensive form with disclosure items that
would not affect every county, the form
was limited to the above-named six hazards
that affect all 58 California counties.
Torlakson acknowledged the existence
and importance of the many other disclosure items not listed on the form, and
realized that other important disclosure
related statutes may be promulgated after
the passage of AB1195. As such, he added
§1103.8 to Article 1.7 of the Civil Code,
which states: “The specification of items for
disclosure in this (NHDS) article does not
limit or abridge any obligation for disclosure
created by any other provision of law or that
may exist in order to avoid fraud, misrepresentation, or deceit in the transfer transaction.
The legislature does not intend to affect the
existing obligations of the parties to a real estate
contract, or their agents, to disclose any fact
materially affecting the value and desirability
of the property.” Thus, making disclosures
outside the six found on NHDS form is
not an option, but a requirement. u
— Malamatenia Mavromatis-Broumand
(“Mailana”), legal counsel for Property I.D.
(a natural hazard and environmental hazard
disclosure company), has practiced land use
law in the Bay Area since 1998.
19
ethics corner
by Carol M. Langford
Lawyers work high stress jobs in a high
stress world. This is particularly true in a
volatile economy, where firms are laying
off lawyers to staunch financial hemorrhaging. The rewards of the profession
can be great, but so are the pressures,
whether we acknowledge them or not.
The incidence of lawyer prescription
drug and alcohol abuse is high: higher
than for any other profession and far higher
than the national average. If you are an
intellectual property lawyer in particular,
then your Myers-Briggs profile fits that
of an alcoholic more than any other practice area.
Let’s talk about alcohol, as its use tends
to increase with stress. First, lest any reader
have the mistaken impression that lawyers
with an alcohol problem come from less
than stellar schools, are not successful, or
work only in small or solo law firms, your
impression is dead wrong. A high percentage of clients with those issues come from
medium and large firms and are very
financially successful. Most went to top
law schools. Surprisingly, they are not the
“losers” of the profession. But they are
unhappy, and stressed, like many of you
are in this economic climate.
Lest any reader have the impression
that lawyers don’t do drugs, well, you are
wrong again. It is true that lawyers generally do not use street drugs. However, they
can be big fans of prescription pain killers,
anti-anxiety drugs, drugs that keep the
user alert and sleeping pills. Since they are
prescribed by a doctor, most lawyers can
not (or will not) acknowledge that those
drugs are all powerfully addicting; and, if
20
regularly used, are almost immediately
addicting for someone with a genetic
predisposition to addiction. You may have
a genetic predisposition if you are a lawyer
who has a parent who abused alcohol or
drugs or who had a parent who engaged
in problem gambling or the like.
You would think that because lawyers
are bright (and they are), they will know
if they have a problem and seek help, but
you would be mistaken. Truth be told,
the overwhelming majority of lawyers
with a real problem refuse to admit it,
even after a DUI, a divorce or a malpractice suit. Often a missed deadline is the
first sign of a lawyer in trouble, and not
just a mistake.
Does your client have an addiction
issue? Some real-life statements may surprise you! “I don’t think I have [an addiction],
but my husband thinks I do” (from a woman
not long out of rehab). Or, “Why is the Bar
after me? I had only one DUI!” (from a man
who weighs around 140 pounds and had
a BAC of 1.8 — most of us would be
crawling on the floor with a 1.8). “I like
strippers, I like girls, and they cost” (from
someone who funded his “dates” with trust
account money). And last, but not least,
“Everyone smokes marijuana, I do too. So what?
My wife hated it, but we are divorced” (from
a lawyer who once ran a Lawyer’s Assistance
Program). When told that they likely all
had a problem, they were, without fail,
indignant and completely disagreed with
the assessment.
How can lawyers be in such denial?
Well, when you drink, or take prescription
drugs for awhile (even if you take those
drugs for a legitimate illness), they eventually hijack the judgment center of your
brain. You can’t feel the hijacking and you
don’t know when it occurs. It’s invisible,
but insidious. Every single drink you take,
every sleeping pill, every poker game adds
a building block that becomes a chemical
pathway to your judgment center. People
who have a problem really don’t know it
because they have lost the ability to know
it. They can’t stop drinking, playing
blackjack etc., because they have lost the
ability on their own to recognize or do
something about it. That is hard to detect
since they may not have lost the ability
to function as a lawyer.
Know that without a properly functioning brain, no one can stop a lawyer from
whatever their addiction of choice is if that
lawyer wants to continue. Crying, showing
them how badly they have hurt you,
threatening to leave them, putting them
in rehab -- may not end the problem. The
brain has been literally chemically hijacked
and is no longer free to just quit.
If you have more than one or two drinks
one or two days a week, then you are likely
not a light drinker. You are already a
moderate drinker. A woman is at a low
risk of having a real drinking problem
only if she drinks seven or less drinks in
a full week. A man is at low risk only if
he drinks 14 or less drinks a week. (By
the way, one drink is not a full glass of wine
in a typical restaurant glass.)
Even low-risk drinking becomes high
risk for people with diagnosed or undiagnosed bipolar disease or depression.
Lawyers have a very high rate of undiagJune 2009
nosed bipolar disease and depression. They
have a hard time recognizing this because
they tend to function quite well for a very
long time with undiagnosed mental illnesses. Drinking will throw you into a
depression and trigger the manic/depression cycling of bipolar disease. It is also
very risky to drink if you have chronic
pain or liver or heart disease.
If you are drinking every day, you need
to ask yourself why. It’s a tough question.
If the answer is, “I am drinking because
it relaxes me” or something to that effect,
then you may be self-medicating an
anxiety disorder or you may be depressed
(depression often shows up as anxiety)
and you need to tell your doctor or
therapist. This is especially true if you
have a parent who has or had a problem.
Ask the doctor if you may have an undiagnosed mental health issue. It may be
hard to do, but your drinking or prescription drug use will not get better if you
don’t address the issue. It will either
continue or get worse.
A Personal Experiment
Is it hard to stop drinking? Yes and no. I
was lucky; I never had an alcohol or drug
problem. But my father abused alcohol
and drugs — a lot — and I knew that I
might carry the unlucky “drunk/prescription drug” gene, too (my father was a highly
respected surgeon). My mother does not
drink, so one day I asked her “Isn’t it a
social disaster not to drink?!” She said no.
Since she’s happy with herself, and her
modest lot in life, I figured she is rare. I
decided she was not a real help and set out
to conduct an experiment — not drink for
one year, to see what it was like, and to
report on it. So here are the results:
I found that the first eight months
were pretty hard; my friends poured me
wine even when I said no, and told me
the experiment was silly. I am single, so
dates presented a challenge. Men said
things like, “You must be in AA” (although
I was not) with a clear indication of distaste
(and being in AA should not be distasteContra Costa Lawyer
ful). It’s true that at a party when others
were celebrating with good champagne,
I certainly wanted to drink it — but not
enough to break my experimental vow.
Interestingly enough, the end result was
that I lost some good friends. Once I
decided to continue not drinking (why
tempt fate — if I have the gene, I’m a
goner), I soon learned that people who
smoke pot and drink like to imbibe with
others. Drinkers don’t want to spend much
down time on a Saturday night with nondrinkers. And when you are sober, watching people with too much to drink talk
loudly, argue and say cringe-inducing
things makes you really glad you don’t
drink. That was a real eye-opener.
I have learned from my clients that if
you think that you may have a problem,
then you likely do. First, call the Other
Bar. They have lost their funding from the
State Bar, only because the Bar is cost
cutting and has decimated everything that
has to do in any real way with helping
people with drug and alcohol problems.
But the Other Bar still exists, and you can
call the State Bar to get their number.
Someone will literally come to your home
and pick you up if you are in a bad way.
It is a truly great organization.
You can also call the LAP program,
though it may not be the best option these
days. Even if you go voluntarily, in order
to be accepted into the program, you must
waive confidentiality as to doctor’s reports
and sometimes family and employer matters. The LAP program is expensive, and
their success rate is comparable to that of
AA or NA. It is a good program, but
again, there may be better or less onerous
options.
You should also attend an AA or NA
meeting, and stand in the back of the
room. There are a lot of very nice, bright
and successful people in those organizations and they are not going to hassle you
if you don’t want to speak. Just sit back
and listen. You may learn something.
Finally, doing what you love is not just
good, but necessary. It calms you down
and makes you happy. If you like to run,
be sure to make time to run. Run for your
life, literally. Exercise increases serotonin,
which gives a feeling of well-being. Do
whatever it is that makes you happy,
whether it be knitting, listening to jazz
or going on a road trip.
Friends, family and waiters are still
eager to make me drink, even after telling
them of my experiment. If someone from
your firm tries to push alcohol on you, and
you don’t want to tell them you are afraid
you could have a problem, a little white
lie can’t hurt: tell them you are a diabetic
and your doctor won’t let you drink. Tell
them you get heart palpitations if alcohol
crosses your lips. Then go home and work
on developing social skills so that you are
prepared for this next time it comes up.
Ask someone in AA; they’ve been through
this before, and they can help.
Remember, every day that you don’t
take a drink, use drugs, or throw your
money away on card games is proof that
you are a person of moral character, trying
to live an ethical life. At least the State
Bar would see it that way. Remember that
it is not immoral to be an alcoholic, but
you will act immorally if you are not doing
your best to stay sober.
If you decide to change your life, good
luck on your journey!
— Carol Langford is a lawyer who specializes
in State Bar defense, legal malpractice and
admissions matters. She is an adjunct professor
of ethics at U.C. Hastings College of the Law,
and a former Chair of the California Committee
on Professional Responsibility and Conduct.
Please send your ethics questions to:
Carol Langford
100 Pringle Avenue, Suite 570
Walnut Creek CA 94596
[email protected]
(If your question is answered in a future column,
your name/firm name will be omitted.)
21
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CONFERENCE ROOMS FOR RENT
Two conference rooms conveniently
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professional announcements
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Share building with 7 solos. One office
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To place an ad, please contact Nancy Young at
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Probate paralegal to attorneys
Joanne C. McCarthy. 2204 Concord Blvd.
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Private Investigator
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22
June 2009
Will & Trust Litigation
Elder Abuse Litigation
•
Conservatorships
BARR & BARR
ATTORNEYS
101 Gregory Lane, Suite 42 • Pleasant Hill, CA 94523-4915 • (925) 689-9944
Edward E. Barr
Loren L. Barr*
Joseph M. Morrill
Christopher M. Moore
John Milgate, Of Counsel
Tracey McDonald, Paralegal
*Certified Specialist, Estate Planning, Trust and Probate Law, The State Bar of California Board of Legal Specialization
Contra Costa Lawyer
23