Lawyer Santa Barbara Summer Solstice Issue

Transcription

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
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
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
T: 962-4887; F: 963-7311
[email protected]
Emily Allen
Legal Aid Foundation
301 E. Canon Perdido Street
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
T: 308-0178; F: 563-9141
[email protected]
Lauren Joyce
Attorney at Law
209 E Anapamu St
T: 705-8022
[email protected]
Brandi Redman
Attorney & Counselor at Law
1021 Laguna St. Apt 8
T: 252-8418;
[email protected]
Angela Roach
University of California, Santa
Barbara
Employee & Labor Relations
3101 SAASB
T: 893-7302
[email protected]
James Sweeney
Allen & Kimbell, LLP
317 E. Carrillo St
T: 963-8611; F: 962-1940
[email protected]
Shelley Vail
University of California, Santa
Barbara
Employee & Labor Relations
3101 SAASB
T: 893-4663
[email protected]
LAUREN WIDEMAN
Price, Postel & Parma, LLP
200 E. Carrillo St., Ste. 400
T: 962-0011
[email protected]
Lida Sideris
Executive Director
15 W. Carrillo Street, Ste. 106
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
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
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
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
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
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
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
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
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
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.
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]
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District office: (805) 564-1649
Fax: (805) 564-1651
Email: [email protected]
18
McIvers&Slater_7.5x4.5_2011
5/4/11
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Page 2
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





        
        


• 
• 
• 


 •

• 
 • 
 
• 
 • 

• 
 • 


 • 
• 

• 

• 
• 

 • 
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
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
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22
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).
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© 2013 Thomson Reuters L-374258/2-13
Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.
June 2013
25
Cappello & Noël LLP
Cappello & Noël LLP
Congratulates
Congratulates
LCappello
EILA J.
J.
NLLP
OËL
& Noël
LEILA
NOËL
For Again Being Named One Of
Congratulates
For Again Being
Named One Of The
L
J. N
The
Top
100 Women Lawyers
in
Top
100
Women
California
EILA Lawyers In
OËL
Los Angeles &California
San Francisco Daily Journals
For Again Being
Named One Of
Los Angeles & San Francisco Daily Journals
The Top 100 Women Lawyers in
California
Los Angeles & San Francisco Daily Journals
Leila is the only Top Woman Lawyer selected between the San Francisco Bay Area
and Los Angeles. Some of Leila’s outstanding accomplishments:
dollar
class Lawyer
action jury
verdict between
against Wells
Fargo
for intentional
Leila• isMulti-million
the only Top
Woman
selected
the San
Francisco
Bay Area
lending discrimination based on race/ethnicity.
and Los Angeles. 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
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
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.
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225 E. Carrillo St. #202
Large office with shared common area
reception and secretary area
copy machine and fax included
covered parking space
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(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
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
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
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.
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
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
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
U.S. Postage Paid
Santa Barbara, CA
The Santa Barbara County Bar Association
15 W. Carrillo St., Suite 106
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

Lawyer Santa Barbara Summer Solstice Issue

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