Lawyer Santa Barbara Official Publication of the Santa Barbara County Bar Association

Transcription

Santa Barbara
Official Publication of the Santa Barbara County Bar Association
February 2012 • Issue 473
Lawyer
Southern California Institute of Law
Judge Kenneth Starr
US Solicitor General
2007
Anthony Capozzi
State Bar President
Member, Judicial
Performance
Commission
2004
Celebrating 25 Years of Legal Education
in Santa Barbara & Ventura Counties
Thanks To Our Commencement Speakers
For Encouraging The Finest Traditions
of the Legal Profession
Hon. Bill Lockyer
CA Attorney General
2003
Justice Paul Turner
Presiding Justice
CA Court of Appeal
Los Angeles
1996
Justice Ming Chin
CA Supreme Court
2006
Justice Norman L. Epstein
Presiding Justice
CA Court of Appeal
Los Angeles
2010
Hon. Tani Cantil-Sakauye
Chief Justice
CA Supreme Court
2011
Prince Zeid Ra'ad Al-Hussein
President, Governing Body
United Nations International Criminal Court
2008
2
Santa Barbara Lawyer
www.lawdegree.com
Justice Arthur Gilbert
Presiding Justice
CA Court of
Appeal-Ventura
2001
February 2012
3
Santa Barbara County Bar Association
www.sblaw.org
A Publication of the Santa Barbara
County Bar Association
2012 Officers and Directors
Catherine Swysen
President
Sanger, Swysen & Dunkle
125 De La Guerra Street, Ste. 102
Santa Barbara, CA 93101
T: 962-4887; F: 963-7311
cswysen@sangerswysen.com
Christine Chambers
Hager & Dowling
319 E. Carrillo St.
805-966-4700
cchambers@hdlaw.com
Donna Lewis
President Elect
Attorney at Law
789 North Ontare Road
T: 682-4090; F: 682-4290
1215donna@cox.net
Danielle De Smeth
Liaison
Greben & Associates
1332 Anacapa Street, Ste 101
963-9090; Fax: 963-9098
danielle@grebenlaw.com
Scott Campbell
Secretary
Rogers, Sheffield & Campbell, LLP
427 East Carrillo Street
Santa Barbara, CA 93121-2257
T: 963-9721; F: 966-3715
scott@rogerssheffield.com
Naomi Dewey
Hardin & Coffin
1531 Chapala St, Ste 1
963-3301; Fax: 963-7372
nrd@hardincoffin.com
Matthew Clarke
Chief Financial Officer
Christman, Kelley & Clarke
831 State Street
T: 884-9922; F: 866-611-9852
matt@christmankelley.com
James Griffith
Bench & Bar
Attorney at Law
1129 State Street, Ste 30
308-0178; Fax: 563-9141
jim@jamesgriffithlaw.com
Mack Staton
Past President
Special Projects
Awards and Board Development
Mullen & Hanzell LLP
112 East Victoria Street
T: 966-1501; F: 966-9204
mstaton@mullenlaw.com
Sanford Horowitz
Events
SB Office of the DA
1112 Santa Barbara Street
569-2436; Fax: 560-1077
shorowitz@co.santa-barbara.
ca.us
Marysol Bretado
Events
Attorney at Law
5733 Hollister Ave, Ste 4
Goleta, CA 93117
692-4940
marysolbretadolaw@gmail.com
Gregory McMurray
Bench & Bar
Attorney at Law
1035 Santa Barbara St, Fl 2
965-3703; Fax: 965-0678
mcmurray@cruzmcmurray.com
Brandi Redman
MCLE
Special Projects
Attorney & Counselor at Law
1021 Laguna St Apt 8
252-8418; Cell: 252-841
b.redman@cox.net
Angela Roach
Bench & Bar Relations
University of California Santa
Barbara
Employee and Labor Relations
3101 SAASB
Santa Barbara, CA 93106-3160
Angela.roach@hr.ucsb.edu
Kelly Scott
Liaison
County Counsel of Santa
Barbara
105 E Anapamu St Rm 201
568-2950; Fax: 568-2982
kscott@co.santa-barbara.ca.us
Carl straub, jr.
Events
FLIR Commercial Vision
Systems Inc.
70 Castillian Dr.
Goleta, CA 93117
690-7190; Fax: 690-8897
carl.straub@flir.com
Lida Sideris
Executive Director
15 W. Carrillo Street, Ste. 106
T: 569-5511; F: 569-2888
sblawdirector@gmail.com
©2011 Santa Barbara County Bar Association
CONTRIBUTING WRITERS
Niki Chopra Richardson
Angela Roach
Robert Sanger
James Shipley
Catherine Swysen
Stephen Underwood
EDITOR
Naomi Dewey
ASSISTANT EDITORS
Christine Chambers
Lida Sideris
MOTIONS EDITOR
Michael Pasternak
VERDICTS & DECISIONS
EDITOR
Lindsay G. Shinn
PROFILE EDITOR
James Griffith
PHOTO EDITOR
Mike Lyons
PRINT PRODUCTION
Wilson Printing
DESIGN
Baushke Graphic Arts
Submit all EDITORIAL matter to
santabarbaralawyer@yahoo.com
with “submissIon” in the email
subject line.
Mission Statement
Submit all MOTIONS matter to
Michael Pasternak at
pasterna@gmail.com.
The mission of the Santa Barbara County Bar Association is to preserve the integrity of the
legal profession and respect for the law, to advance the professional growth and education
of its members, to encourage civility and collegiality among its members, to promote equal
access to justice and protect the independence of the legal profession and the judiciary.
Submit all advertising to
SBCBA, 15 W. Carrillo Street,
Suite 106, Santa Barbara, CA 93101
phone 569-5511, fax 569-2888
Classifieds can be emailed to:
sblawdirector@gmail.com
4
Santa Barbara
Official Publication of the Santa Barbara County Bar Association
February 2012 • Issue 473
Lawyer
Articles
Sections
7 President’s Message, By Catherine Swysen
30 Verdicts & Decisions
8 Letter from the Editor, By Naomi Dewey
32 Motions
10 SBWL Annual Dinner Proves Memorable Evening for
34 Calendar
All, By Angela D. Roach
13 Trap for the Unwary—or How to Avoid Malpractice
when Presenting a Government Claim, By Stephen D.
Underwood
16 Equal Access to Justice Fundraiser, By Niki Chopra
Richardson; Photos by Priscilla
26 In Memoriam: Roy Stephen “Steve” Kinnaird
27 Science and the Law The Reference Manual on Scientific
Evidence, Third Edition, By Robert Sanger
29 Legal Aid and the Doctrine of Cy Pres, By James Shipley
35 Classified
35 Section Notices
About the Cover
Photo by Matt Mazza, Esq., who has taken a sabbatical
from his practice to travel the world with his wife Wendi
and two delightful children. Look for an article about life
in India, Nepal and Thailand (and thinking outside of the
law) in March’s edition of Santa Barbara Lawyer.
Judge Arthur A. Garcia;
Barbara Babcock, author
and Professor Emerita
at Stanford Law School,
and Judge Patricia
Kelly at Santa Barbara
Women Lawyers’
Annual Dinner. Photo
Credit – Laura Dewey.
February 2012
5
McIvers&Slater_7.5x4.5_2011
5/4/11
3:52 PM
Page 2
McIvers & Slater
Mediation and Arbitration
Kevin Thomas McIvers
Hon. James M. Slater
kmcivers@mciversandslater.com
Judge of the Superior Court, Ret.
jslater@mciversandslater.com
Excellence in Dispute Resolution
Business Disputes
Real Estate
Elder Abuse
Professional Liability
Medical Malpractice
Insurance & Bad Faith
Employment & Wrongful Termination
Construction Contract & Defect
Personal Injury & Wrongful Death
(805) 897-3843
www.McIversandSlater.com
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DaviD K. HugHes
retired trial Attorney
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ArbitrAtion
v
ChristiAn ConCiliAtion
Contact David at
805-962-2566 or dklk@cox.net
nominal Fees & Pro bono Work
6
SBCBA
President’s Message
By Catherine Swysen
S
adly, the year started with the passing of Richard
Lee, on January 9, 2012. Rick was a member of our
legal community for over thirty years. He made
Santa Barbara his home after graduating summa cum laude
from Santa Clara Law School in 1977. He started as an
associate attorney with the firm of Schramm and Raddue
and later became a senior partner. In 1993, Rick married
fellow lawyer, Diana Jessup Lee. Following the dissolution
of Schramm and Raddue in 1996, Rick started his own
solo practice while Diana joined the newly formed firm of
Reicker, Pfau, Pyle & McRoy, where she is still a partner.
Rick was a successful solo practitioner until 2007 when he
joined Reicker, Pfau as a partner. He practiced there until his
medical retirement in December 2010. Rick was active in
both legal and community organizations. He served twice
on our board. He also held leadership positions with the
Legal Aid Foundation, the Alano Club, the Barristers’ Club,
St. Andrew Presbyterian Church, and Teen Court. As his
family and friends remembered at his service, Rick loved
being a lawyer and helping people. His commitment to
serving others continued even after being diagnosed with
frontotemporal degeneration (FTD) and ALS. Until his final
month, he volunteered at the Unity Shoppe and the Central
Office of AA. Above all, Rick was dedicated to his family,
a loving and supportive father and husband, a loyal friend
and a mentor to many. He will be greatly missed.
On February 11, I attended an all State Bar Association
Meeting in San Francisco moderated by the State Bar
President, Jon Streeter, in partnership with the Open Courts
Coalition. The meeting was attended by the major local
bar associations as well as numerous legal aid organizations and specialty bars. Chief Justice Cantil-Saukaye, Ron
Overholt, Interim Administrative Director of the Courts,
and Curtis Child, Director of AOC Legislative Services of
the Administrative Office of the Courts were among the
speakers. The State Bar’s main agenda this year is to assist
the judicial branch with advocacy to ensure proper funding of the judicial branch. The purpose of the meeting was
to educate the local bar associations on the issue and urge
February 2012
them to join the advocacy
effort. More on this next
month.
Finally, the annual Bench
and Bar Conference on
January 14 was a huge success. Lawyers came from
as far as Thousand Oaks
and San Luis Obispo to
attend. Kudos to Jennifer
Hanrahan and Brandi Redman for a job well done.
Special thanks to Brian
Hanrahan who worked
tirelessly throughout the
day to make the conference a success.
Catherine Swysen
Children’s Waiting Room
offers childcare, resources
for parents attending court
hearings
A
trip to the courthouse isn’t always
fun for kids – especially when they
are accompanying parents involved in
stressful legal proceedings. Judge Denise de Bellefeuille reminds us that Santa Barbara Superior Court
offers a “Children’s Waiting Room” to those using
the Santa Barbara courthouses. The Honorable
Deborah Talmage Children’s Waiting Room in the
Figueroa Courthouse provides free childcare for children between the ages of 2 and 12. Toddlers must
be potty trained. “Tell your clients. Take advantage
of this wonderful service. The kids will love it – the
room is well appointed with games, toys, computers and movies to keep them entertained while you
are in court,” says Judge de Bellefeuille. The service,
which was dedicated on April 1, 2011, is staffed by
licensed caregivers, and is run by the courts in partnership with the Community Action Commission.
7
SBCBA
Letter from the Editor
By Naomi Dewey
W
elcome to the February 2012 edition of Santa
Barbara Lawyer!
As we move into the new year, we are excited to announce some changes to the way your magazine
is published.
The biggest change is to our deadlines. Traditionally, the
deadline for magazine content has been on the second Monday of each month, with flexibility for certain events and
must-read articles. We are taking the bold move of changing
that, bringing the deadline forward to the FIRST Monday
of each month. We are kind folks here at the magazine, but
there are no longer any soft deadlines without pre-approval.
Over the coming months, you will begin to see a fresher,
more readable format for the magazine; the earlier deadline
will allow us to streamline the magazine process behind
the scenes, freeing our wonderful designer up to focus on
what she does best - design.
The second change is
a focus on content. Our
March edition, “Outside
the Law,” will showcase
news and features from
our colleagues who have
stepped out of the box
and made life changes
that should inspire all of
us. Our cover photo this
month was taken by one
such lawyer, Matt Mazza
(formerly at Stradling Yocca) who is traveling with
Naomi Dewey
his family in Thailand,
Nepal, and India. In April,
we will focus on Earth Day, and in May, as part of President
Catherine Swysen’s efforts to revitalize Law Week, we will
focus on the ABA’s Law Day 2012 theme, “No Courts, No
Justice, No Freedom,” which underscores the importance
of the courts and their role in ensuring access to justice for
all Americans.
The third change is a small one. Look for Santa Barbara
Lawyer submission guidelines on the Santa Barbara County
Bar website, and you will find information about submitting
your photos, articles, motions, verdicts, and settlements.
Finally, this is, and will remain, your magazine. We look
forward to working with all of you!
Connecting
x
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A Public Service of the Santa Barbara County Bar Association
8
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SBCBA
Santa Barbara Lawyer – Submission Guidelines & Key Dates
Santa Barbara Lawyer publishes monthly. In 2012, the deadline for content, copy, and photographs is on
the first weekday of each month. There is no “soft-deadline” without pre-approval from the Editor.
Articles
Include a title or headline with your article. Include your name/title, and a short biography at the end of your article.
Articles do not need to be laid out; plain text is easier for us to work with.
Shorter paragraphs work best for our newsletter format. Aim for 600-1200 words.
Microsoft Word, WordPerfect, .rtf or .txt files are ideal. No PDFs.
Please proof your material before you send it in! We cannot guarantee that we will catch every spelling, grammar, or
punctuation error, and proof-reading takes time away from the design and editing process.
Photographs and images
Color photographs are preferable.
Send the largest file (highest resolution) of the best quality possible. Photographs must be a minimum of 300 dpi.
Do not edit or crop your photos. Do not embed images in Word or any other application.
Send the photographs as separate attachments.
Captions are best sent with their image - for example:
image file name
caption
[ARTICLE NAME] 1.jpg Jane Smith, Robert Redford, and Paul Newman
[ARTICLE NAME] 2.jpg Attendees at the Legal Aid luncheon.
If there are several images and they will not fit in one email, send what will fit and include the captions to those images in the email.
Coverage: From time to time, an article idea, feature, profile, event, or photo opportunity comes along that you think
should be in the magazine. Please send it to us as it happens or when you think of it. This makes it easy for us to plan
ahead and make sure it is covered; hunting around for photos after an event takes time.
Verdicts & Settlements: Santa Barbara Lawyer seeks to objectively report verdicts, decisions, and settlements from
cases involving lawyers and firms based in Santa Barbara County.
Space in the magazine: Santa Barbara Lawyer is printed in multiples of four pages (i.e. an edition will be 28/32/36/40
pages long). When space is a concern, we may shorten or even omit an article. When this is done, we take into account
timing, need to publicize your events and deadlines, and whether the article could run in the following edition.
Content: Santa Barbara Lawyer is a publication of the Santa Barbara County Bar Association, written by and for our
membership. We reserve the right to reject content that runs counter to SBCBA’s published mission and goals or that is
not of interest to our readership.
Contact information
Content should be sent to santabarbaralawyer@yahoo.com.
Verdicts & Settlements should be sent to lshinn@mullenlaw.com
Motions (short news articles/announcements) should be sent to pasterna@gmail.com
Editorial Board
Naomi Dewey (Editor) , Phone: (805) 963-3301 (office) or cell (805) 452-3763 , Email nrd@hardincoffin.com
Christine Chambers (Assistant Editor) , Phone: (805) 966-4700, Email cchambers@hdlaw.com.
Mike Lyons (Photo Editor) , Phone: (805) 570-0269, Email: mtlyons@earthlink.net
Mike Pasternak (Motions Editor), Email: pasterna@gmail.com
Lindsay Shinn (Verdicts & Settlements Editor), Phone: (805) 966-1501, Email: lshinn@mullenlaw.com
Lida Sideris (Santa Barbara County Bar Executive Director) handles advertising sales and inquiries, Phone: (805) 5695511, Email: sblawdirector@gmail.com
February 2012
9
Legal Community
SBWL Annual
Dinner Proves
Memorable Evening
for All
By Angela D. Roach
O
n December 12, 2011, Santa Barbara Women
Lawyers held its Annual Dinner at the Canary
Hotel. This event is always the crowning event
of the year for SBWL, but I believe all those who attended
would agree that the 2011 Annual Dinner was special.
Guests entered the Canary Hotel to festive holiday decorations and made their way to the reception downstairs
near the Grand Ballroom. The reception was packed and
guests were warmed by outstanding wine donated by
Victor Abascal, Winemaker and Owner of Vines on the
Marycrest Winery.
The event was strongly supported by the local Bench and
community leaders. SBWL was pleased to welcome the
many Judges of the Santa Barbara Superior Court who attended including Presiding Judge Brian Hill, Assistant Presiding Judge Arthur Garcia, Judge Donna Geck, Judge Colleen
Sterne, Judge Denise de Bellefeuille, Judge George Eskin,
Judge Patricia Kelley, Commissioner Pauline Maxwell, and
Commissioner Denise Motter. Additionally, SBWL was
pleased with the support from local community leaders
including Janet Wolf, Santa Barbara County Second District
Supervisor, and Salud Carbajal, Santa Barbara County First
District Supervisor.
After the reception, the dinner program began. As 2011
SBWL President, I opened the evening with some brief
remarks about the current status of women in the legal
profession and the importance of SBWL in our community. Woman lawyers have come a long way since the first
women became a lawyer in California over 130 years ago.
However, despite that, we have not reached gender parity in our profession. It has been said, “[t]here is no longer
an intake problem, but an upgrade problem.” Inequities
remain with regard to pay for the same work, who holds
leadership positions in the profession, and representation
of women on the bench. SBWL continues to seek equality
in the legal profession, encourage women to join the legal
field, promote women lawyers in our community, and use
our skills and abilities to positively impact our community
as a whole. SBWL fulfilled this charge in 2011 through edu10
cational events, mentoring and collective efforts to improve
our community as a whole. SBWL hosted MCLE events on
the topic of unequal pay, health issues that affect women
and the law, work life balance, and tips for effective oral
argument. In 2011, SBWL increased the amount of mentoring opportunities for women lawyers in our community.
Finally, SBWL started new programs that positively impact
our community as a whole. SBWL started the ‘Food from
the Bar’ program in 2011, and with the support from other
legal organizations in our community raised approximately
$7,000 and collected several hundred pounds of food for
local families in our community.
Finally, I recognized that SBWL’s 2011 accomplishments
would not have been possible without an outstanding Board
of Directors which included: Gabriela Ferreira, Jennifer
Yates, Alison Holman, Emily Allen, Michael Colton, Susie
Davidson, Danielle De Smeth, Jessica Johnson, Pauline
Maxwell, Brandi Redman, Marianne Stein, and Pauline Ung.
Keynote Speaker Barbara Babcock Tells the
Story of Clara Foltz
Attendees were next rewarded by an inspiring keynote
address by Barbara Babcock, retired Stanford Law School
Professor, pre-imminent researcher on women and the
law, and author. Ms. Babcock is an impressive and inspiring women lawyer in her own right. She received her law
degree from Yale Law School in 1963. After graduation,
she clerked for Judge Henry Edgerton of the U.S. Court of
Appeals for the District of Columbia Circuit, worked for a
noted criminal defense attorney, and subsequently served as
the first Director of the Public Defender Service of the District of Columbia. She was the first woman faculty member
hired and tenured at Stanford Law School. She founded
the women’s legal history biography project and is known
nationwide for her research into the history of women in
the legal profession. In particular, Ms. Babcock is known
for her research into the life of California’s pioneering first
female lawyer, Clara Foltz. Without Ms. Babcock, Clara
Foltz may have been relegated to a footnote in our history.
In 2011, Professor Babcock released the only book written
about Clara Foltz, “Woman Lawyer: The Trials of Clara Foltz.”
After her book was published, Ms. Babcock embarked on a
year long book tour, speaking at both large and small events
about Clara Foltz. Ms. Babcock spoke about the diverse
places this tour took her throughout the year. SBWL’s Annual Dinner was the final stop on this tour.
Ms. Babcock then spoke about Clara Foltz. Clara Foltz,
a single mother, moved to California from the mid-West
seeking opportunity. Women were not permitted to attend
law school in the 1880s. Instead of accepting this fate,
Legal Community
February 2012
11
Legal Community
Clara Foltz sued for the right to attend California’s only
law school. She lobbied the Governor to sign the Woman
Lawyer’s Bill--legislation entitling women to practice law.
She then became the first woman admitted to practice law
on the West Coast. In California, Ms. Foltz became the first
female deputy district attorney, the first woman to serve as
legislative counsel, the first woman to prosecute a murder
case, to hold statewide office, and to become a notary public. Ms. Folz tried cases in court—before women were even
permitted to serve on juries or vote. Critically, Ms. Foltz
was also the founder of the public defender movement.
Ms. Babcock provided some insight into how Clara Foltz
responded to the institutional and cultural challenges she
faced. For example, following an oral argument relating to
her legal challenge to the prohibition that women could
not enter law school, a male observer commented that she
should stay out of the profession and remain at home raising children. Undeterred, she responded with her quick wit
that she would not want to raise a child to grow up with
his narrow-minded viewpoint. Both Barbara Babcock and
the story of Clara Foltz inspired the crowd. Ms. Babcock
concluded her remarks that she was certain Clara Foltz
would have been proud of the SBWL organization and the
gathering at the Annual Dinner.
Attorney of the Year Award Presented to Judge
Donna D. Geck
The second portion of the program was devoted to the
presentation of the 2011 Deborah M. Talmage Attorney of
the Year Award. Each year, this honor is bestowed on an
outstanding legal professional who is dedicated to the success of women, mentors her colleagues and other women,
is committed to the highest level of ethics, has achieved
professional excellence, and who is committed to our Santa
Barbara Community.
SBWL was honored to present the 2011 award to Judge
Donna Geck. Judge Geck’s impressive resume demonstrates
she has achieved professional excellence and is committed
to the highest level of ethics. Judge Geck was appointed
to the bench in June 2010. She originally handled criminal
arraignments in Department 8 and currently presides over a
civil calendar in Department 4. Prior to her elevation to the
bench, Judge Geck was a partner at the Santa Barbara firm
of Hager & Dowling, a civil litigation practice where her
experience included jury trials, court trials, arbitrations, and
mediations. Judge Geck was also the first female President
of the local California Coast Chapter of American Board
of Trial Advocates (ABOTA). Judge Geck was also a board
certified as a Civil Trial Specialist by the National Board of
Trial Advocacy.
12
A self-described “accidental lawyer,” Judge Geck originally pursued a career in journalism. During college, she
spent her summers working for a TV station in Bismarck,
North Dakota called KFYR, an NBC affiliate, where she did
on-location news reporting. She decided to pursue legal
reporting and attended law school at the University of
North Dakota Law School. During and after law school she
worked for two other news stations doing on-location news
reporting. She then worked in the Public Defender’s office
where she was in the courtroom everyday and obtained
valuable trial experience. Ultimately, she left the Public
Defender’s office and practiced law in several civil defense
firms before coming to California to join Hager & Dowling.
What cannot be found on Judge Geck’s impressive resume
is her unwavering commitment to mentoring, supporting
and encouraging women lawyers. While at Hager & Dowling, Judge Geck readily embraced the role of mentor to
young lawyers, law clerks, and legal assistants. As a result,
women in the firm went to her for counsel, feedback, and
guidance. Judge Geck encouraged women lawyers to take
on leadership roles both in the firm and in the community.
Judge Geck also inspired numerous individuals to become
lawyers—by inspiring legal assistants and law clerks to go
to law school. This includes a new lawyer who will join the
2012 SBWL Board. One of her former colleagues, who is
currently in law school, said this about Judge Geck: “Judge
Geck was an outstanding lawyer, now Judge, and mother.
She balances her career and family with strength, integrity,
and humility. She is a class act. If Judge Geck can do it, I
know it is possible for me to do it too.”
Judge Geck has also enriched the Santa Barbara Community as a whole. Judge Geck continues to serve as a Teen
Court Judge, a program she has supported for many years.
Judge Geck is a former Santa Barbara Women Lawyers
Board member. Judge Geck has served as a Settlement
Master for the Superior Court. Judge Geck is also currently
a Master at the William L. Gordon Inns of Court.
Judge Geck graciously accepted the award. She acknowledged the outstanding women lawyers who received the
award in past years. Judge Geck bestowed the award back
to SBWL for its accomplishments. Judge Geck also acknowledged and thanked her long-time friend Joan Bircher, and
her children, which included Troy and Tyler Geck who
attended the dinner.
The evening ended onward looking to 2012 when the
2012 Board of Directors was sworn in by SBWL Founding
Mother, Deborah M. Talmage. In all, the 2011 SBWL Annual
Dinner was a memorable evening for all who attended.
See more photos on page 26.
Legal News
Trap for the Unwary
—or How to Avoid Malpractice
when Presenting a Government
Claim
By Stephen D. Underwood
M
any practicing lawyers may have missed the
recent case of DiCampli-Mintz v. County of Santa
Clara (2011) 195 Cal.App.4th 1327 (Review
Granted, August 2011 by the California Supreme Court),
particularly if you don’t regularly litigate against local
governmental agencies. Whether or not your practice
involves litigation against government entities, it may in
the future. This article discusses DiCampli-Mintz and the
potential pitfalls lawyers face when presenting claims to
governmental agencies.
The facts in DiCampli-Mintz are as follows; and as often
happens, bad facts make bad law.
On April 4, 2006, defendants Drs. Bao–Thuong Bui
and Abraham Sklar performed a hysterectomy on Ms.
DiCampli-Mintz at Valley Medical, a hospital owned and
operated by the County of Santa Clara. Complications
arose during the surgery. Some months later, in mid–2006,
plaintiff went to Valley Medical’s emergency department
because she was in a great deal of pain. On this occasion,
an emergency room physician told her that blood vessels
had been damaged in the first surgery, requiring a second
surgery. Another doctor expressed sympathy for her condition and asked if she had consulted an attorney.
By early April 2007, plaintiff had engaged an attorney.
He prepared a letter for transmission to Valley Medical, as
well as Drs. Bui and Sklar, giving them notice, in accordance
with Code of Civil Procedure § 364 (Notice of intention to
Commence Action), that “Hope DiCampli–Mintz will file
suit against you for damages resulting from the personal
injury of Hope DiCampli–Mintz.” The letter stated in some
detail that defendants negligently performed the hysterectomy causing significant harm to Ms. DiCampli-Mintz.
The letter contained a request that the recipient “forward ...
[the letter] to your insurance carrier and have them contact
the undersigned at their earliest convenience.” The County
conceded that so far as content is concerned, the letter satisfied the requirements of the government claims act and
constituted a tort claim.1 (See Phillips v. Desert Hospital Dist.
(1989) 49 Cal.3d 699, 701–702.)
February 2012
Plaintiff’s attorney delivered three copies of this letter
addressed to Bui, Sklar, and the Risk Management Department, to Cynthia Lopez of the Medical Staffing Office in
the County Administration Building for delivery to each of
the individually named parties. The attorney sent three additional copies, similarly addressed, by certified mail; these
were received by Valley Medical’s mail services department.
Plaintiff’s attorney received a recorded telephone message
from David Schoendaler, who was a liability claims adjustor, working for the Santa Clara County Risk Management
Department, that the 364 Notices had been received. A few
days later, Mr. Schoendaler and plaintiff’s attorney spoke
by telephone. According to Schoendaler, he noted receipt
of the Notice of Intention; he verbally opined that service
on Santa Clara Valley Medical required a tort claim which
was late; he verbally questioned whether a tort claim was
required as to Dr. Sklar and Dr. Bui, and indicated that he
would look into that; he stated that Ms. DiCampli–Mintz
had an interesting case; he made note of Plaintiff’s obesity
and said a theory of defense was that Plaintiff placed herself
at risk with her obesity; and he finally advised that Deputy
County Counsel, Dave Rollo, would be the attorney handling the defense for Santa Clara County. Mr. Schoendaler
never mentioned that the Notice of Intention was presented
to the wrong party. Plaintiff never received written notice
that her claim was untimely or otherwise deficient.
Plaintiff ultimately filed a complaint naming Bui, Sklar,
and Valley Medical as defendants. The complaint acknowledged that Plaintiff was required to comply with the government claims statutes, but asserted that she was excused
from doing so because defendants failed to provide notice
to Plaintiff as required by Government Code §§ 910.8, 911,
911.3,2 and therefore waived any defenses they may have
had to the sufficiency of Plaintiff’s claim (CCP § 364 - Notice
of Intention to Commence Action) as presented.
A brief introduction to the government claim filing
requirements might be helpful. Generally, any claim for
money or damages must be presented to a government
agency within six months of the accrual of the claim.
(Government Code §§ 905, 911.2). Failure to timely present
such a claim works as a statute of limitations to foreclose
a claimant from successfully pursuing litigation.3 As noted
in footnote two, if the claim is deemed insufficient, the
governmental agency must notify the claimant within 20
days of any defect in the claim; failure to do so waives any
insufficiency, and the governmental agency has 45 days
within which to return an untimely claim. Failure to return
the untimely claim to plaintiff waives any defense that the
claims are untimely.
However, the central issue in this case involved Govern13
Legal News
ment Code § 915, specifically subsections (a) and (e). The
No officially reported case in the last 40 years has found
issue as presented to the Supreme Court for review is one of
substantial compliance with the claims presentation act if
first impression: Can the delivery of a government claim to
the claim never is delivered to or “actually received” by the
a public employee not designated under Government Code
officials designated in section 915. In fact, the cases that
§ 915 be considered “substantial compliance” for purposes
have considered this issue during that 40 year period all
of the Government Claims Act?
have found no compliance. (See Del Real v. City of Riverside
Government Code § 915 (a) and (e) provide: “(a) A claim,
(2002) 95 Cal. App. 4th 761, Life v. County of Los Angeles
any amendment thereto, or an application to the public
(1991) 227 Cal.App.3d 894, Munoz v. State of California
entity for leave to present a late claim shall be presented
(1995) 33 Cal.App.4th 1767, and Westcon Construction Corp.
to a local public entity by either of the following means:
v. County of Sacramento (2007) 152 Cal.App.4th 198.)5
The claim presentation requirements
“(1) Delivering it to the clerk, secretary,
of the Claims Act have often been called
or auditor thereof.
a “trap for the unwary” due to the seem“(2) Mailing it to the clerk, secretary, The claim presentation
ingly complicated rules for presenting a
auditor, or to the governing body at its
requirements of the
claim to a public entity. (Life v. County of
principal office.
Los Angeles (1991) 227 Cal.App.3d 894,
“(e) A claim, amendment or application Claims Act have often
899.) However, with respect to section
shall be deemed to have been presented in
915, it seemed as clear as any statute
compliance with this section even though been called a “trap for
could be – the government officials who
it is not delivered or mailed as provided in the unwary” due to the
are specifically identified, at least by
this section if, within the time prescribed
title, in a claim, must receive a copy of
for presentation thereof, any of the fol- seemingly complicated
the complaint. If a claimant or his/her
lowing apply:
rules for presenting a
attorney have any question about who
“(1) It is actually received by the clerk,
those officials are, they must search a
secretary, auditor or board of the local claim to a public entity.
public entity web site, calling any of
public entity.”
those listed officials, or through a Public
Section 915 specifically provides that a
Records Act request. In addition, public
claim must either be delivered or “actually
agencies, other than cities and counties, are required to file
received” by the clerk, secretary, auditor, or governing body
such information with the Secretary of State and that inforof the local public entity. Ms. DiCampli-Mintz conceded
mation is listed on the Roster of Public Agencies maintained
her claim was neither delivered nor actually received by
by the Secretary of State. (Government Code § 53051).
the official recipients mentioned in section 915.
From a practical standpoint, practitioners should not mail,
The circumstances in which failure to present a claim
deliver, or otherwise present a claim, or what purports to
to the proper recipient most often arises is in the medical
be a claim, to any division, department, or employee of a
malpractice area, as occurred in the DiCampli-Mintz case.
4
governmental entity, other than those designated in section
Some counties have hospitals, most have clinics, and if
the medical facility, physician or other medical provider
915. Anything less may be considered legal malpractice if
is sued for alleged malpractice, CCP § 364 requires they
the claim is not actually and timely received by the proper
receive notice. While a “364 Notice” may constitute a valid
government official. The Supreme Court’s decision in
claim, it still must be delivered or actually received pursuDiCampli-Mintz should decide the issue once and for all
ant to section 915 by the officials listed therein. At least
as to whether section 915 means what the plain language
that was what public entities believed was the law prior
seems to say.
to DiCampli-Mintz.
Stephen Underwood, former Chief Assistant County Counsel for
Notwithstanding Ms. DiCampli-Mintz’s failure to presSanta Barbara County, is currently Professor of Law and Faculty
ent her claim to the proper government official, the Sixth
Chair at the Santa Barbara-Ventura Colleges of Law. He is also
District Court of Appeal found that because the claim was
General Counsel for the CSAC Excess insurance Authority, a Joint
received by the County’s Risk Management Division and
Powers Agency. He is the principle author of the California SuCounty Counsel was notified, there was “substantial compreme Court amicus brief in DiCampli-Mintz v. County of Santa
pliance” with the claim presentation requirements. That
Clara filed on behalf of the CSAC Excess Insurance Authority, the
decision created substantial uncertainty within the public
League of California Cities and the California State Association
entity community.
14
Legal News
of Counties. These three organizations represent almost all public
entities in California, including schools and special districts.
Endnotes
1
2
3
4
5
Goodbye!
Farewell! We’ll
miss you!
Not all CCP § 364 notices will qualify as a claim, but may be
considered to have substantially complied with the Claims Act
if the contents of a claim as required by Government Code § 910
are in the “364 Notice.”
These sections relate to a “Notice of Insufficiency” of the claim (§
910.8), defense as to sufficiency is waived if Notice not provided
(Government Code § 911) and failure to notify claimant that claim
is presented late – waives untimely presentation. (Government
Code § 911.3)
The Claims Act does allow excuses to the six month limitations
period when there is surprise, inadvertence, mistake, or excusable
neglect, but in no event can a claim be presented after one year
from the accrual of the underlying cause of action. (Government
Code § 946.6)
Cities, schools, and specials districts generally are not medical
providers, so this specific factual issue is not likely to occur.
However, claims often are misdirected to departments, divisions,
or employees of an entity.
Other than DiCampli-Mintz only one case in last 80 years, Jamison
v. State of California (1973) 31 Cal.App.3d 513, found substantial
compliance when a claim was not presented to those officials
listed in section 915. Jamison was expressly disavowed in Del
Real v. City of Riverside (2002) 95 Cal. App. 4th 761.
If you have not renewed your
membership in the Santa Barbara
County Bar Association, this will
be your last issue of Santa Barbara
Lawyer magazine.
To renew your membership, find
the application on page 28.
Thanks to Our
Fee Arbitration Panel!
The SBCBA would like to thank the following Mandatory Fee Arbitration attorneys and arbitrators for their service in 2011. The program, which operates under the auspices of the State Bar of
California, provides services to resolve fee disputes between clients and attorneys.
Joseph AllenDonna Lewis
Marilyn Anticouni
Matthew Long
Eric Berg
Patrick McCarthy
Alan Blakeboro
Steve Penner
Scott Campbell
Mac Sanborn
Arthur Carlson
Heather Smith
Penny Clemmons
Jon-Erik Storm
Howard Everakes
John Thyne III
Bruce Glesby
Rachel Wilson
Michael Hall Gray
Eric Woosley
David Grokenberger
Jeffrey Young
Marlea Jarrette
Victor Zilinskas
Paul Kremser
February 2012
15
Legal Community
Equal Access to
Justice Fundraiser
By Niki Chopra Richardson; Photos by
Priscilla
O
n December 15, 2011, Legal Aid Foundation of
Santa Barbara County hosted its inaugural Annual Campaign for Equal Access Fundraising
Luncheon at Fess Parker’s DoubleTree Resort. Over 150
people attended this powerful, mission-based event.
Legal Aid’s Executive Director Ellen Goodstein talked
about her vision for the agency—when there might be
a time when no one is denied access to justice in Santa
Barbara County. “I see a time when Legal Aid Foundation
of Santa Barbara County serves as a ‘shining star’ to the
entire State of California; where Legal Aid is able to fully
assist every resident of this county that walks through its
doors,” said Ms. Goodstein.
Cappello & Noël, LLP made a five-year financial commitment to support the Legal Aid Foundation of Santa Barbara
County. The firm announced it would donate $10,000 a
year for five years to the non-profit organization, which
provides free legal services to those in need. “The Legal Aid
Foundation plays a critical role in Santa Barbara County,”
said Mr. Cappello, “Those of us in the legal community
should do everything we can to support the Legal Aid’s efforts to help the less fortunate receive legal representation.
2012 Mock Trial
Competition Scorers
Needed
Earn MCLE Credits While Providing
Community Service
Santa Barbara Courthouse
Saturday, February 25th and Saturday, March 3rd
Contact Josefina Martinez at jmartinez@sbcourts.org.
16
The need for assistance is growing as economic conditions
force families and individuals into legal situations they
never could have imagined,” says Leila J. Noël, partner
at Cappello & Noël. “Our firm is a strong believer in the
Foundation’s good work and its steadfast commitment to
giving equal legal access to all.”
The event included a testimonial by a grandmother who
was helped with obtaining guardianship of her sick twoyear old granddaughter, a short film produced by Legal Aid
Board Member Saji D. Gunawardane that highlighted the
work of the Foundation, a moving rendition of “I Believe”
by opera singer and retired attorney Marilyn Gilbert, a
visionary speech by Legal Aid’s Executive Director Ellen
Goodstein and finally, the challenge by A. Barry Cappello
for others to join him in becoming members of Champions
of Justice—a multi-year giving society charged with helping establish the sustainability and long-term stability of
the 52-year old agency. Law firms Fell, Marking, Abkin,
Montgomery, Granet & Raney, LLP and Reicker, Pfau,
Pyle, & McRoy, LLP and attorneys Allan Ghitterman, D.
William Wagner, Sherry Melchiorre, Amy Steinfeld, Penny
Mathison and Lessie Nixon all rose to the challenge and
pledged multi-year commitments to Champions of Justice.
Cappello & Noël, LLP has a successful history of representing individuals and small business owners who take
on large corporations and their powerful law firms. In particular, Cappello & Noël is acknowledged as the pioneer in
lender liability law, where borrowers seek justice against
lender misconduct. It also represents plaintiffs in complex
business litigation, catastrophic injury, and wrongful death
cases, and plaintiffs’ class actions. The firm is a strong proponent of equal access to the legal system and professional
legal representation regardless of an individual’s financial
circumstances.
The mission of the Legal Aid Foundation of Santa Barbara
County is to provide high-quality legal services in order to
ensure that low-income persons and seniors have access
to the civil justice system in times of crisis – to secure safe,
habitable shelter, adequate income, and protection from
domestic violence and elder abuse. Last year, Legal Aid assisted over 5,100 residents of the county. Of this, 1,026 were
seniors and nearly 600 were victims of domestic abuse.
The agency has recently launched the Campaign for Equal
Access to Justice under the umbrella of which lies Champions for Justice, a multi-year giving society and Patrons
for Justice, a monthly giving club with maximum monthly
donations of $75/month.
For more information about Champions of Justice or Patrons of Justice, contact Legal Aid’s Development Director
Niki Richardson at 805.963.6754 x109.
February 2012
17
Equal
Access to
Justice
Standing: Joe Bush,
David Hughes, Tom
Hinshaw, Linda Krop,
Michael Colton and Scott
Felson. Seated: Sigrid
Twomey, Sue McCollum,
Audrey Austin, Vanessa
Kirker
Standing: David Borgatello, Richard Heimberg and Dan Simon. Seated: Harvey
Wolf, Roger Aceves, Penny Mathison, and Glenn Robertson.
A Fundraiser
for Legal Aid
Standing: Laurie
Cox, Warren
Butler, Yvonne
Cudney, Susan
Epstein. Seated:
Jake Ainciart,
Biannet Garcia,
Brandi Redman,
Elizabeth Diaz
18
Cyndi Silverman, Nitana Sanchez and Judi Weisbart
Marilyn Gilbert, Ellen Goodstein, A. Barry Cappello & Leila Noël
Standing: Amy Steinfeld, Courtney Davis, Saji Gunawardane, Linda Minky and Dylan Johnson.
Seated: Marilyn Metzner, Hon. Thomas P. Anderle, Bill Poulis, and Erika Pearsons.
Standing: Richard Hecht, Ben
Feld and Rhonda Henderson,
Megan Compton, and
Armando de Fillipo. Seated:
Russell Ghitterman, Allan
Ghitterman, Hon. Susan Rose,
Gordon Roberts.
Standing: Kristin Kirby
Whelan, Marvel Kirby,
Pamela Haskell, Gary
Gulbransen, Kevin
Whelan, Susan Miles
Gulbransen, Christopher
Haskell. Seated: Dr.
Robert Failing, Nancy
Ann Failing.
February 2012
19
r u b e n st e i n
s o r e n s e n
a dr
servi c e s
Mediation, Arbitration
Referee, Special Master
We are proud to announce
the opening of our new office at
211 E. Anapamu Street,
Santa Barbara 93101
Ready to set tle your case
Real property
Probate
Business
Family business and succession
Employment
Personal injury
Judith Rubenstein, J.D., M.A., Psych.
Judith@rsmediate.com
www.rsmediate.com
t 805.892.2747
dl 8 0 5 . 6 3 7 . 6 8 5 0
Lol Sorensen, J.D., M.S.W
lo l @ r s m e d i a t e . c o m
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t 805.892.2747
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To schedule a consultation, please call 805-879-7517
15 West Carrillo, Suite 300 • Santa Barbara, CA 93101
info @ elinorreiner.com • www.elinorreiner.com
20
In Memoriam
Roy Stephen
“Steve” Kinnaird
F
ormerly of Hot Springs, AR, Roy Stephen “Steve”
Kinnaird, age 61, son of Mr. and Mrs. Roy Kinnaird,
Jr. died December 1, 2011 in Santa Barbara, California. He was predeceased by his mother, Ann Talley
Kinnaird. He is survived by his father, Roy Kinnaird, Jr.
of Hot Springs, and sisters Jane Ann Fortenberry of Little
Rock, and Melissa Kinnaird Wise (Philip) of Dallas. He is
also survived by his nieces Anna Fortenberry, Katie Peek
(Hamilton), Alex Bledsoe and nephew Stephen Wise. In
1974 he graduated from the University of Arkansas, and in
1981 obtained his J.D. from Santa Barbara College of Law.
He was an associate in the law offices of Kris Kallman and
was a member of the State Bar of California and the Santa
Barbara County Bar Association.
Steve was an avid horseman. He and his horse, Slim,
participated many years in the Santa Barbara Trail Rid-
ers, local rodeos, team
penning competitions,
and also rode every
year in the Santa Barbara Fiesta Parade. He
was a member of Los
Rancheros Visitadores. Music was also an
important part of his
life, and he played the
guitar both as a hobby
and professionally as
a member of many
groups including The
Blue Laws and Bark
Roy Stephen “Steve” Kinnaird
Street Boys.
His sweet and tender
spirit will be missed.
His silent guitars will haunt us. Those who knew and loved
him will be saddened by his early departure from us. In
lieu of flowers, the family requests donations to Disabled
American Veterans, PO Box 14301, Cincinnati OH 452050301 or Hearts Adaptive Riding Academy, PO Box 30662,
Santa Barbara CA 93130. Graveside services were held at
Memorial Gardens in Hot Springs, AR on January 14th.
A Celebration of Life was held in the Ranchero Room at
Harry’s in Santa Barbara Tuesday January 24th.
Notice of Fee Changes Effective November 1, 2011
A
t its September 2011 session, the Judicial Conference of the United States approved changes to
the miscellaneous fee schedule for U.S. District
Courts. The following changes will become effective November 1, 2011.
• The attorney admission fee (including pro hac vice
admissions) will increase from $275 to $305.
• The fee for filing a miscellaneous action (i.e.,
any document that is not related to a pending case
or proceeding) will increase from $39.00 to $46.00.
• The fee for a records search (per name or item) will
increase from $26.00 to $30.00.
• The certification fee (per document) will increase
from $9.00 to $11.00.
• The fee for reproducing an audio recording of
a court proceeding will increase from $26.00 to
$30.00.
• The fee for record retrieval (from the Federal ReFebruary 2012
cords Center or the National Archives) will increase
from $45.00 to $53.00.
• The fee for a returned check (insufficient funds)
will increase from $45.00 to $53.00.
• The fee for an appeal to a district judge from a
judgment of conviction by a magistrate judge in
a misdemeanor case will increase from $32.00 to
$37.00.
• The fee for a certificate of good standing will increase from $15.00 to $18.00.
• The fee for a civil action under the Cuban Liberty
and Democratic Solidarity Act of 1996 (LIBERTAD)
will increase from $5,431.00 to $6,355.00 (this fee
is in addition to the $350.00 civil case filing fee).
Fees are authorized by 28 U.S.C. 1914 and Civil L.R.
11-1(d) and 11-3(c). Complete federal court fee schedules
are available at: http://www.uscourts.gov/FormsAndFees/
Fees.aspx.
21
Criminal Justice
Science and the Law
The Reference Manual on
Scientific Evidence, Third
Edition
None of that—what is
at the heart of criminal
cases—was covered by
the prior editions.5
Daubert, Kumho,
and (Kelly) Frye
By Robert Sanger
T
he Federal Judicial Center and the National Research Council of the National Academies have
just released, in September 2011, the Third Edition
of the Reference Manual on Scientific Evidence.1 The First Edition was published in 19942 and a Second Edition in 2000.3
The idea was to create a reference work that would “assist
judges in managing expert evidence, primarily in cases
involving issues of science or technology.”4 The Manual
does not replace reading the scientific literature, consulting
experts, and studying the subject matter in depth; however,
it does give a solid jumping off place to address the courts,
especially during motions in limine, to admit or exclude
expert testimony. The Manual, now over 1,000 pages, is
disseminated to all federal judges. It is also available to
state court judges as well as federal and state practitioners.
To date, the civil bar has been most active in litigating
issues relating to scientific evidence. Tremendous amounts
of time and money have gone into litigating the admissibility of expert testimony relating to toxic torts, medical
malpractice, and personal injury accidents. The revisions
resulting in this Third Edition of the Manual are likely
to provoke controversy among civil lawyers in that, for
instance, there is a new chapter on “Exposure Science” in
addition to the existing one on “Epidemiology.” This will be
of significance to the mass torts litigation bar on both the
plaintiff and defense sides. The Third Edition is likely to be
featured in some of that litigation. Nevertheless, the book is
the culmination of substantial work and review by judges,
lawyers, and scientists, and remains a worthy reference.
In this month’s Criminal Justice column, we will look
briefly on the state of Daubert (and current science) and at
its applicability in a Frye jurisdiction. We will then look at
the new Manual in relation to criminal cases. There is a
new 75 page chapter on “Forensic Identification Expertise”
which covers a good percentage of the expert testimony
offered in criminal trials. It includes extended discussions of
fingerprints, handwriting, firearms, bite mark, and hair identification, as well as general references to other issues like
gun shot residue, trace, and other areas of expert testimony.
22
All judges and lawyers
should consult the Manual
before considering expert
or scientific testimony. In
federal practice, one can
be pretty much assured
that the judge and her or
Robert Sanger
his clerks, interns, and
externs all have a copy of
the Manual and use it. In state court, it is less certain that
there will be a copy in chambers, but reference to it by
practitioners will increase its use. This Manual is the work,
now continuing for over two decades, of the best minds in
law and science throughout the country. It does not mean
that it is correct in all details, but it is a substantial foundation for understanding the scientific method in general6,
and for understanding its application in many particular
circumstances.
The Manual 1st Ed. was published just after the United
States Supreme Court decision in Daubert.7 In that case,
and, later, in Joiner8 and Kumho Tire,9 the Court created the
beginnings of a federal jurisprudence of expert testimony
based on science. The Court considered amicus briefs from
American Association for the Advancement of Science and
the National Academy of Sciences. In the end, the Daubert
opinion endorsed a general empiricist view of science and
suggested that trial judges look at four criteria to determine
if proffered scientific evidence should be admitted: 1) falsifiability or testability; 2) peer review, 3) rate of error and 4)
acceptance in the scientific community.
The Court in Daubert held that the Frye10 test, applied
in California under Kelly,11 was superseded by the Federal
Rules of Evidence. The Daubert Court based its decision on
the supervisory power of the Court over the federal judiciary and, specifically, interpreted the requirements of FRE
702. Daubert does not stand as a constitutionally mandated
rule of law that would be applicable to the states. Therefore,
states like California are not constitutionally precluded from
continuing to apply the Frye test.
Nevertheless, Frye jurisdictions are impacted by the
rationale of Daubert and its progeny. The fourth criteria in
Daubert—acceptance by the scientific community—is essentially the same as the first prong of Frye.12 But, neither
Criminal Justice
science nor the scientific community are frozen in time in
is intelligible, based on the latest thinking in the area and is
1923, when Frye was written. Daubert simply reviewed
published for federal judges. Until this Third Edition, there
the scientific method and the state of science in 1993 and
has not been a similar judicial reference work on the kinds
held that a scientific standard should be used by the trial
of forensic science and pseudoscience that we encounter
judges. They are designated as “gatekeepers” to avoid the
in everyday criminal cases.17
Regarding criminal cases, the Manual states, “To date,
introduction of untrustworthy evidence proffered as sciDaubert has rarely been used in the forensic context.”18
entific. Kuhmo Tire, simply expanded that role to expert
In fact, “few prosecution witnesses have been excluded
testimony in general. The Daubert Court made the obvious
in criminal prosecutions.”19 It also recognizes, however,
point that the courts should strive to deal with science in a
that the National Academy of Science report, published
modern fashion. It is hard to see how that rationale would
in 200920, was highly critical of the forensic sciences in
not pertain to state judges applying Frye.
criminal cases. With developments like Melendez-Diaz v.
The California Evidence Code, like the Federal Rules
Massachusetts21, and the publication of
of Evidence, contains a statutory basis
the new material on forensic sciences in
for the regulation of expert testimony.
this new Third Edition, there may be a
Evidence Code Section 720 limits who All judges and lawyers
change. Moreover, the Manual specifimay be called as an expert witness and
cally highlights some of the failings of
Evidence Code Section 801 and 803 should consult the
prosecution forensic experts noted by
limit the opinions of an expert. Expert
the National Academy of Sciences,
and medical testimony are not strictly Reference Manual on
such as, lack of validity studies, lack
regulated by Kelly-Frye in California,13
but that does not mean that they are not Scientific Evidence before
of proficiency testing, lack of adequate
regulated. There is existing precedent
controls in laboratories ,and the abuse of
for some judicial regulation of scienthe witness stand by experts who claim
considering expert or
tific experts requiring the proponent to
too much for the prosecution.
show that the expert used acceptable scientific testimony.
The new Chapter on Forensic Idenprocedures in applying the science to
tification Expertise looks specifically
the facts of the present case.14 It was
at fingerprint, handwriting, firearms,
hoped that the Lockheed Litigation Cases15
bite-mark, and hair identification testiwould determine the extent of judicially imposed restricmony. There are overall sections on scientific techniques,
tions on expert testimony, but those cases were summarily
on recurring problems with purported expert testimony, on
dismissed by the California Supreme Court.16 Furthermore,
discovery issues and limitations of expert testimony. The
in criminal cases, the defendant has a Constitutional right
Manual is not comprehensive regarding these forensic idento due process under the Fifth and 14th Amendments which
tification issues, nor with regard to other kinds of scientific
require the court to exclude unreliable evidence.
evidence. However, as with the rest of the Manual, even if
Whether by virtue of Daubert and the Federal Rules of
a particular subject is not thoroughly discussed, what exists
Evidence, or by virtue of Kelly-Frye and the California
provides a basis for critical thinking about admissibility.
Evidence Code or by Due Process, litigants are entitled to
The Manual highlights the danger of allowing routine
have in limine hearings to determine whether or not expert
junk science before juries. It cites a study showing that of
evidence should be admitted. Therefore, the kind of in200 wrongful convictions, 55% were based on flawed exformation amassed by the Federal Judicial Center and the
pert testimony, second only to false eye-witness identificaNational Research Council in the Manual 3rd Ed. is useful
tions, which were present in 79% of the cases.22 However,
to all lawyers and judges in making these determinations
correcting this problem will require a paradigm shift on the
in all jurisdictions, including California.
part of the courts. If a Daubert type scientific approach is to
be applied, the courts will have to rethink whether to admit
The Third Edition of the Manual
the forensic science and the usual forensic crime lab witness
We have used the Manual in its First and Second Editions
just because they are always admitted. This will require
in numerous civil and criminal cases, both in state and feda multi-stage analysis, applying science and the Evidence
eral court. When tackling an area like Statistics and Multiple
Code at each stage to prevent these demonstrably unfair
Regression analysis, for instance, it is invaluable to be able
results. If the testimony is allowed, then the judges will
to point the judge and opposing counsel to a treatise that
have to pay much closer attention to how such testimony
February 2012
23
Criminal Justice
should be limited.
The in limine process should involve four distinct stages:
1) Whether the purported science is a science (is it falsifiable, testable, peer reviewed, subject to error testing and
accepted in the scientific community); 2) Whether the witness is a scientist (or a true expert in the scientific discipline);
3) Whether the data reliable is in this case (not corrupted
in place, not contaminated when handled and tested, sufficient for valid testing, etc.); and, if those three criteria are
met, 4) What limitations should be placed on the witness
while testifying (reporting only on the data and on scientific
hypotheses derived from the data, on attempts to disprove
the hypotheses and limited claims of the significance of
findings).23
Conclusion
There is no reason why trial judges in criminal cases
should continue to let in expert testimony from people
who are not testifying to scientific hypotheses, but who
take the stand to bolster the argument of the prosecution.
Even when a motion is adequately briefed and vigorously
argued, judges in criminal courts tend to find that government proffered testimony is “close enough for government
work.” Yet, they or their fellow judges would not allow the
same sort of thing in civil litigation.
The Third Edition of the Manual should be in every trial
judge’s chambers, state and federal. Lawyers need to direct
judges to the discussions of purported expertise and help
them understand what does and does not make it a science.
Judges should be made aware of the issues regarding each
of the proposed stages of inquiry so that, if testimony is
allowed, they can effectively reign in witnesses who exceed
the bounds of their expertise, and the scope of what the
evidence actually shows.
Robert Sanger is a Certified Criminal Law Specialist and has been
a criminal defense lawyer in Santa Barbara for 38 years. He is a
partner in the firm of Sanger, Swysen & Dunkle. Mr. Sanger
is an Officer of California Attorneys for Criminal Justice (CACJ)
and is the Co-Chair of the CACJ Death Penalty Committee as
well as a Director of Death Penalty Focus and a Member of the
ABA Criminal Justice Sentencing Committee and the NACDL
Death Penalty Committee.
Endnotes
1 Reference Manual on Scientific Evidence, Third Edition, National
Academies Press, Washington, D.C. (2011) (hereineafter, “Manual,
3rd Ed.” Or “Third Edition”)
2 West Publishing Co. (1994) (hereinafter, “Manual, 1st Ed.”).
3 West Group (2000) (hereinafter, “Manual 2nd Ed.”).
24
4 Manual, 1st Ed., 1.
5 There was a chapter on DNA in the Second Edition that has been
slightly revised and moved from the end (Manual, 2nd Ed. 485)
to near the beginning of the Third Edition (Manual, 3rd Ed. 129).
Other than that, the other most common criminal issues , were
not addressed until now.
6 The treatment in the Manual of the scientific method in general
is, just that, general. Criticism can be leveled against this general
treatment of the scientific method from a scientific standpoint
and from the perspective of the philosophy of science. Some of
these criticisms originate with the Supreme Court’s discussion of
the subject in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993). For instance, Karl Popper’s theory of falsifiability has been
poorly understood and David Goodstein’s chapter “How Science
Works” (Manual 3rd Ed. 37) treats it dismissively. I am presently
addressing some of these issues in a law review article that will,
I hope, shed more light on the scientific method. The article will
also address procedural issues relating to in limine Daubert (or
Kelley/Frye) motions. Nevertheless, the manual and Goodstein’s
article give an introduction to lawyers and judges to the scientific
method as a prelude to the substantive chapters .
7 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
8 General Electric Co. v. Joiner, 522 U.S. 136 (1997).
9 Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999)
10 Frye v. United States, 54 App. D. C. 46, 47, 293 F. 1013 (1923).
11 People v. Kelly, 17 Cal. 3d 24 (1976).
12 It could also be argued that Frye only applies to novel scientific
evidence and not to existing science or to non-scientific experts.
13 See, e.g., Roberti v. Andy’s Termite & Pest Control, Inc., 113 Cal.
App.4th 893, (2003) and People v. Stoll,49 Cal.3d 1136 (1989).
14 People v. Venegas, 18 Cal.4th 47 (1998). That would be the third
prong of Frye. Venegas is an early DNA case that held that DNA
analysis was not a new scientific technique and so did not fall
under the first prong of Kelly-Frye.
15 23 Cal. Rptr. 3d 762 (Ct. App. 2005), petition for review granted, 110
P.3d 289 (Cal. 2005), petition for review dismissed, 83 Cal. Rptr. 3d 478
(2007).
16 There is an argument that Evidence Code Section 802 also extends full Daubert authority to judges in California . See Edward
Imwinkelreid, and David Faigman, Evidence Code Section 802: The
Neglected Key to Rationalizing the California Law of Expert Testimony,
42 Loyola of Los Angeles L.R. 427 (2009).
17 There is also a new chapter on Neuroscience (Manual 3rd Ed.
747) which will be of significance in organic brain damage cases
relating to a lack of capacity, or legal insanity, or to mitigation
evidence in capital cases.
18 Manual 3rd Ed. 26.
19 Id. 27.
20 National Research Council, Strengthening Forensic Sciences in the
United States: A Path Forward, U.S. Government Printing Office
(2009).
21 129 S.Ct. 2527 (2009). The fact that the Supreme Court has confirmed that a defendant in a criminal trial has a Sixth Amendment
right to confrontation of a forensic expert who did testing in the
laboratory, suggests that the court regards the foundation for
expert opinions seriously.
22 Manual 3rd Ed. 62, n. 32.
23 These four stages are logical, based on good science and supported by case law and will be elaborated on in the forthcoming
law review article referred to in note 6, supra.
February 2012
25
Legal Community
SBWL Annual Dinner, see page 8 for complete coverage
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28
Legal News
Legal Aid and the
Doctrine of Cy Pres
By James Shipley
C
y pres comme possible, French for “as near as possible”, is increasingly used by Courts to award
unclaimed class action settlement funds to charitable organizations. In these uncertain economic times,
these funds may prove to play a vital role in the continued
vitality and success of Legal Aid programs. Courts, mass
tort, and class action practitioners, and the bar at large,
should be aware of the doctrine and endeavor to incorporate
it into practice as a means of assisting Legal Aid organizations and other charitable entities. The doctrine of cy pres was initiated in the context of
trusts. When the original objective of a trust was no longer viable or germane, leftover or remaining funds were
diverted to other similar purposes in lieu of dissolving the
trust. Courts would infer new objectives for trust funds
when the stated objectives became obsolete, impractical,
or illegal. The cy pres doctrine was essentially a rule of construction used to preserve testamentary charitable gifts. In
one famous example, a trust was set up in the 1800s to provide funds to turn public sentiment against slavery. When
slavery was abolished, the Court allowed the remaining
trust money to be used for a purpose “as near as possible”
to the initial intent—in that case to provide funds to educate
former slaves. (Jackson v. Phillips (1867) 96 Mass. 539.) The
courts utilized a fluid approach in place of rigid or static
procedures with funds to be expended for their next best
use in lieu of dismantling a trust. This fluid approach was “borrowed” in class action cases.
In many class action lawsuits, there often remains a residue
of undistributed funds because members of a class action
lawsuit pass away or cannot be found at distribution, or
because some class members fail to submit a claim. In other
cases, individual damages may be de minimus and notification costs and distribution costs surpass the class action
award. The question is what to do with the reservoir of
undistributed funds. In the case of State v. Levi Strauss &
Co. (1986) 41 Cal.3d 460, the California Supreme Court
applied the doctrine of cy pres to undistributed settlement
funds, permitting such funds to be distributed to the “next
February 2012
best” class when
the actual plaintiffs could not be
compensated individually. Code of Civil Procedure § 384 codifies the doctrine
of cy pres in California. Section (a)
provides: “It is
the intent of the
Legislature in enacting this section
to ensure that the
unpaid residuals
in class action litigation are distribJames Shipley
uted, to the extent
possible, in a manner designed either
to further the purposes of the underlying causes of action,
or to promote justice for all Californians.” The statute
mandates that the court account for class payments and to
ultimately amend the judgment to direct the class action
defendant to pay residual unpaid funds to various named
organizations. Specifically included in the named recipients
are “nonprofit organizations providing civil legal services
to the indigent.” In the midst of California’s historic economic crisis, Legal
Aid revenue is down. Between 2008 and 2009, revenue
from one of the core sources of funding for legal aid, the Interest on Lawyers’ Trust Accounts (IOLTA) dropped almost
70% due to declining interest rates—from $22 million to $7
million, according to Stephanie Choy, Managing Director
of California’s Legal Services Trust Fund Program. In Santa
Barbara, funding from County Human Services was cut
42%. An increase in the number of people in need of civil
legal aid has occurred concurrently with a collapse of funding available to finance this assistance. People’s hearts are
in the right place, as evidenced by California’s recent passage of the Sargent Shriver Civil Counsel Act, a three year
pilot program that will provide poor individuals a lawyer
in certain cases, including domestic violence claims, child
custody cases, and housing matters. The problem is that
the decline of funding has, in practice, resulted in cutbacks,
loss of programs, and work furloughs for the typical legal
aid organization. Continued on page 31
29
Legal News
Verdicts and
Decisions
Fogh v. Los Angeles Film Schools, LLC et al.
Los Angeles County Superior Court, Central District
Case Number: BC414706
Type of case: Unpaid Wages
Type of proceeding: Court trial
Judge: Hon. Richard L. Fruin
Length of trial: 3 Days
Date of Decision: December 14, 2010
Plaintiff: Cody Fogh
Plaintiff’s Counsel: James H. Cordes and Steven M. Rubin
Defendant: Los Angeles Film Schools, LLC, et al.
Defendant’s Counsel: Dayton Parcells III and Lisa W. Lee
Facts and Contentions: Plaintiff worked 40 to 45 hours per week as an Admissions Representative for Defendant
Los Angeles Film Schools, LLC, a for-profit post-secondary film school, and was paid a salary with no overtime. Plaintiff
contended he was entitled to unpaid overtime wages and premiums for missed meal and rest breaks. Defendant contended Plaintiff was exempt from the requirement to be paid overtime wages, that Plaintiff worked no overtime, and that
Plaintiff was provided with all meal and rest breaks.
Result: The Court found Plaintiff was not exempt and awarded $13,972.00 in compensation for unpaid overtime hours
worked plus interest of $4,416.00 for a total judgment of $18,388. Plaintiff’s counsel moved for reasonable attorney’s
fees and costs under Labor Code section 1194 and was awarded $88,000.00 plus a 1.1 multiplier plus $3,408.17 in costs
for a total of $100,208.17. Each of Plaintiff’s counsel was awarded $490.00 per hour. Defendants filed a memorandum
of costs related to certain dismissed claims and parties. Plaintiff’s motion to strike all costs was granted.
Heavener v. Mueller
Santa Barbara County Superior, Anacapa Division
Case Number: Type of case: Type of proceeding: Judge: Length of trial: Length of deliberations: Date of Verdict or Decision: 1372236
Auto
Jury trial
Hon. Denise de Bellefeuille
5 days
2 hours
December 6, 2011
30
Legal News
Plaintiff: Plaintiff’s Counsel: Defendant: Defendant’s Counsel: Experts: Shirley Heavener
Chad Prentice of Maho & Prentice
Steven Mueller
Charles Wessler of the Law Office of Gregory J. Lucett
For Plaintiff: David Frecker, M.D. and James Kwako, M.D.; For Defendant:
Hans Barthel, M.D.
Overview of Case: On October 23, 2008, Plaintiff and a Volkswagen van were stopped. Defendant rear-ended the
Volkswagen and pushed the Volkswagen into the Plaintiff’s vehicle. Plaintiff’s vehicle sustained $6,300.00 in property
damage.
Facts and Contentions: Plaintiff claimed that the accident caused her to suffer neck and back pain and resulted
in post-traumatic fibromyalgia. Plaintiff also claimed that she worked for 5 months after the accident, but had to stop
working because she developed post-traumatic fibromyalgia and has not been able to return since. Defendant admitted
liability, but argued that Plaintiff’s post-traumatic fibromyalgia was not caused by the accident.
Summary of Claimed Damages: Plaintiff suffered approximately $38,000.00 in past medical specials, claimed
over $100,000.00 for future medical expenses, approximately $90,000.00 in past loss of earnings and $1,580,250 in future
lost income.
Result : 12-0. Plaintiff was awarded $31,000.00 for past medical expenses, $4,100.00 for past loss of earnings, and
$30,000.00 for past general damages. The jury did not award any special or general damages for future medical expenses,
loss of earnings or pain and suffering. The jury determined that the fibromyalgia was not caused by the automobile accident.
Legal News
Shipley, continued from page 29
Cy pres awards can be used to fund essential legal
services for the poor. These funds can be used by legal aid
organizations to fund specific programs or can be used to
fund operating costs of legal aid organizations to ensure
provision of urgently needed legal services to those in need. The Legal Aid Foundation of Santa Barbara County is
actively seeking cy pres awards to help fund its ongoing programs. Established in 1959, LAFSBC provides high-quality
legal services in order to ensure that low-income persons
and seniors have access to the civil justice system in times
of crisis—to secure safe, habitable shelter, adequate income,
and protection from domestic violence and elder abuse.
With offices in Santa Barbara, Santa Maria and Lompoc,
LAFSBC has demonstrated such excellence in provision of
legal services to low-income members of the community
that it has been chosen as one of only seven legal aids to
participate in the Sargent Shriver pilot project. Each year
the Legal Aid Foundation of Santa Barbara assists over
February 2012
5,000 people. The Chief Justice of California, the Honorable Tani
Cantil-Sakauye has said that: “Especially in times of crisis,
when services are cut, homes are taken and jobs are lost,
the courts serve as the safety net for a civil society. Making
good on the promise of equal access to justice in our state
is not a challenge only for the courts, nor is it a challenge
only for the bar. It is a challenge for all Californians.” Cy pres funds can help the most vulnerable among us.
LAFSBC helps victims of domestic violence and elder abuse,
and those who are facing loss of housing, family problems,
or bankruptcy. If you are handling a class action case and
there are residual funds, consider Legal Aid Foundation
of Santa Barbara County as a recipient. A cy pres award
to LAFSBC will ensure fulfillment of the promise of equal
access to justice for all people of Santa Barbara. James Shipley is in private practice with Stockwell, Harris, Woolverton & Muehl, and serves as Vice-President of the Board of
Directors of the Legal Aid Foundation of Santa Barbara County.
31
Legal Community
The Legal Aid Foundation is pleased to make several
exciting announcements. First, the Foundation’s Director
of Litigation Yvonne Cudney has been appointed Project
Manager of the Sargent Shriver Project. Alex Lambrous, one of Legal Aid’s longest serving attorneys, will
take over as Director of Litigation. Kristine Mollenkopf is pleased
to announce the opening of her
own office, Mollenkopf Law
Group, in Santa Maria, California. Mollenkopf Law Group will
continue to specialize in civil litigation, particularly in the areas of
business, construction, real estate
contracts, and government entity representation. Mollenkopf
Law Group is located at 1862
Kristine Mollenkopf So. Broadway, Suite. 203, Santa
Maria, CA 93454; phone (805)
314-2378; fax (805) 314-2642; and
email Kristine@MollenkopfLawGroup.com.
Finally, at Legal Aid Foundation’s Annual Campaign for
Equal Access Fundraising Luncheon held on December
15, 2011, Cappello & Noel, LLP pledged $50,000 to Legal Aid Foundation in a five year pledge. This spearheads
Legal Aid’s Champions of Justice, a multi-year giving
society charged with helping establish the sustainability
and long-term stability of the nearly 53-year old agency.
Law firms Fell Marking, Abkin, Montgomery, Granet
& Raney, LLP and Reicker Pfau Pyle & McRoy, LLP
and attorneys Allan Ghitterman, D. William Wagner,
Sherry Melchiorre, Amy Steinfeld, Penny Mathison
and Lessie Nixon all rose to the challenge and pledged
multi-year commitments to Champions of Justice.
Hardin & Coffin LLP is pleased
to announce that Lora Hemphill
has been named Co-Chair of the
Santa Barbara County Bar Civil
Litigation Section. Ms. Hemphill joined Hardin & Coffin in
2003, and her practice involves a
variety of civil litigation matters,
including personal injury and
construction defect cases, as well
as representation of government
Lora Hemphill
entities. Ms. Hemphill is very
involved in the Santa Barbara
legal community, having served
on the board of directors of Santa Barbara County Bar
Association, Santa Barbara County Bar Foundation, Santa Barbara Women Lawyers, Santa Barbara
Women Lawyers’ Foundation, and Courthouse Legacy
Foundation. In 2006, she was recognized by the Pacific
Coast Business Times as one of their “40 Under 40.”
SB Legal Secretaries Association: SBLSA invites
membership for 2012. Full membership is $45/yr;
local membership $25/yr. For more details, visit
www.sblegalnet.com.
Santa Barbara Women Lawyers is pleased to announce
it has updated its website. Individuals can now register and
pay for events and renew their membership online. Visit
www.sbwl.org.
SB and Ventura Colleges of Law: The spring semester
began January 3, 2012. More information can be found at
http://www.collegesoflaw.edu.
Santa Barbara Women Lawyers Foundation awarded
five scholarships (with a combined value of $8,500) at the
end of 2011: two to high school students with the best essay
on cyber bullying, and three to local law students.
Additionally, Brandi Redman will join the staff of Legal
Aid in the Santa Barbara office as Senior Staff Attorney after
serving as Supervising Attorney of the Legal Resource Center. Ron Perry will take her place as Supervising Attorney
of the Legal Resource Center.
32
Legal Community
On January 21-22, 2012, the historic Santa Barbara
Courthouse saw its first college mock trial tournament, the Paradise Invitational. Participants
from universities including UC Berkeley, UCLA,
UCSB, UCSD, UC Irvine, Claremont McKenna,
Cal Poly SLO, Fresno State, and Arizona tried State
v. Dawson, a DUI Murder case before local judges
and attorneys. Students from Santa Barbara High
School served as jurors. Tournament proceeds will
help fund the Santa Barbara County High School
mock trial winner’s trip to the State Championship. The tournament was co-hosted by UC Irvine Mock Trial and Danielle De Smeth, Esq.
Special thanks to Paradise sponsor Hager &
Dowling for its generous $1500 donation. At
the time this article went to press, tournament
sponsors included Eric Burrows, the Eagle Inn,
the Best Western Pepper Tree Inn, Blueprint
LSAT Preparation and the Law Office of Seana
B. Thomas. The tournament would not have
been possible without the support of Presiding
Judge Brian Hill, Judge George Eskin, Ronn
Carlentine and Linda Van der Wyk from the
County of Santa Barbara, and the attorneys and
judges who volunteered to score the rounds.
William L. Gordon Chapter of the American Inns
of Court is still accepting applications for 2012. The
first meeting is February 1, 2011 at the University Club,
1332 Santa Barbara Street. Social Hour begins at 5:30,
Buffet Dinner at 6:15 and Program at 7:00. For more
information or to request an application please contact
Cheryl Johnson at cjohnson@hbsb.com or Brandy Bartosh at bbartosh@aklaw.net. For the first time, the Inn
is letting nine students apply for membership, the fee
is $200 per student. Applications should be emailed to
Cheryl Johnson. Each student will be seated at a table
during presentations with one judge, seven attorneys
and one other student who was appointed as a member
through their school.
Legal Aid: Save the date for 8th Annual Taste for Justice
and 2nd Annual Chili Cook off in Santa Maria at a WWII
Airport Hangar on March 3, 2012 from 1-5pm. Tickets are
$50 and include tastings to wine, beer, and food, and a live
and silent auction. All proceeds from the event benefit Legal
Aid Foundation’s direct services in North County.
February 2012
The Paradise Invitational draws some of the
best and brightest law students from university mock trial teams.
The Northern Santa Barbara County Bar Association
has named former Vice President Aaron Smith as President.
General Bar Lunch Meetings will continue to be held on the
third Thursday of each month at Noon at Testa’s Bistro, 113
South College Drive, Santa Maria. The cost is $15 per person
for members, $20 for non-members. More information can
be found at http://www.nsbbar.org.
Bill Mahan is the new President of Santa Barbara Courthouse Legacy Foundation, following in the footsteps of
Tom Thomas.
If you have news to report—e.g. a new practice, a new hire or
promotion, an appointment, upcoming projects/initiatives by local
associations, an upcoming event, engagement, marriage, a birth
in the family, etc.—the Santa Barbara Lawyer editorial board
invites you to “Make a Motion!” Send one to two paragraphs for
consideration by the editorial deadline to our Motions editor, Mike
Pasternak at pasterna@gmail.com. If you submit an accompanying photograph, please ensure that the JPEG or TIFF file has a
minimum resolution of 300 dpi. Please note that the Santa Barbara
Lawyer editorial board retains discretion to publish or not publish
any submission as well as to edit submissions.
33
February 2012
Calendar
SUNDAY
MONDAY
TUESDAY WEDNESDAY THURSDAY
FRIDAY
SATURDAY
1 2 34
Family Law
Section Morning
Coffee
5 6
7
8
Santa
Barbara Lawyer
Submission Deadline
9 10 11
Civil Litigation, IP and
In-House Counsel
Sections MCLE
Luncheon
12131415161718
19202122232425
Presidents’ Day
Courts Closed
26
27
28
29 March 1
2
3
2012 SBCBA SECTION HEADS
Alternative Dispute Resolution
David C. Peterson
441-5884
davidcpeterson@charter.net
Bench & Bar Relations
Herb Fox
hfox@foxappeals.com
Civil Litigation
Naomi Dewey
nrd@hardincoffin.com
Laura Hemphill
ldh@hardincoffin.com
Client Relations
Thomas Hinshaw tmhinshaw@cox.net
Scott Campbell
scott@rogerssheffield.com
Debtor/Creditor
Section Heads Needed
899-4777
963-3301
963-3301
729-2526
963-9721
Elder Law
Denise Platt denise@jodymoorelaw.com
Jody Moore jody@jodymoorelaw.com
Employment Law
Kimberly Cole
kim@kimberlycolelaw.com
Estate Planning/Probate
Brooke Cleary
cleary@taxlawsb.com
David Graff
dgraff@aklaw.net
Family Law
Jennifer Drury jdrury@drurypullenlaw.com
Vanessa Kirker
vk@kirkerlaw.com
34
604-7130
604-7130
845-4581
965-1329
963-8611
879-7523
964-5105
In-House Counsel & Corporate Law
Betty L. Jeppesen 963 -8621
jeppesenlaw@gmail.com
Intellectual Property/Tech. Business
Christine L. Kopitzke 845-3434
ckopitzke@socalip.com
Real Property/Land Use
Bret Stone bstone@paladinlaw.com
Taxation
Peter Muzinich pmuzinich@rogerssheffield.com
Joshua P. Rabinowitz jrabinowitz@fmam.com
898-9700
963-9721
963-0755
Classifieds
OFFICE SPACE AVAILABLE
We have an extra office at 3324 State Street, Suites O and
N (across State Street from Loreto Plaza). New subtenant
may choose from either of the following:
1) 250 ft 2 offered at $750.00 per month (plus service
costs as identified, below) with private Suite designation,
parking space, bathroom and entrance; or
2) 125 ft 2 offered $360 per month plus service costs.
Rental cost includes: (1) High speed internet; (2) VOIP
phone system with dedicated phone line, private phone
number with virtual office capabilities; (3) use of new
Kyocera copy machine (per copy charges are extra); and
(4) bi-weekly cleaning service. Either office may be fully
furnished for additional charge.
Please call Bob Hurlbett, 805-963-9111, ext. 2.
Civil Litigation, IP and In-House Counsel Sections
Manage Your Online Presence to Grow Your Practice
*** Includes Free Copy of “How to Turn Clicks into Clients” ***
Date: Thursday, February 9, 2012
Time: 12-1:15 p.m.
Location: Santa Barbara College of Law
Topic: Discover how to grow your online professional reputation the right way and learn how to comply with the
stringent rules governing an attorney’s online presence. This educational and entertaining course will help you transform
your online presence so you are effectively connecting with peers, attracting new clients, and avoiding pitfalls that can
cost you time, money, and your practice. • Learn what to include in a firm website, and how to properly represent your firm on local search directories. • Discover what makes an effective law firm website strategy from blogging to social media.
• Review the rules that Google has in place avoiding costly mistakes and learn some general guidelines regarding
your online presence. Course Content:
• Creating and Updating Your Firm Website – What you can and can’t do
• Local Online Directory Listing - The Good, the Bad, and the Unethical
• Five myths about attracting more clients online
Presenters: Ed Rush, Co-Author of “How to Turn Clicks into Clients – The Ultimate Law Firm Guide To Getting
Clients Online, a former Marine fighter pilot and flight instructor for the F-18 Hornet.
Jabez LeBret: Co-Author of How to Turn Clicks into Clients, considered a leading authority on monetizing social media.
Cost: SBCBA Members: $30, Non-Members $40
MCLE: One hour MCLE credit
RSVP: Naomi Dewey, Civil Litigation Co-Chair, at nrd@hardincoffin.com by February 3, 2012. Please make checks
payable to SBCBA, and mail c/o Naomi Dewey, Hardin & Coffin LLP, 1531 Chapala, Suite 1, Santa Barbara, CA 93101.
February 2012
35
Prsrt Std
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 18 years and a Real Estate Broker with
my own company for 15 years.”
Gary Goldberg
Real Estate Broker • Licensed Attorney
UC Hastings College of Law • Order of the Coif
DRE License # 01172139
“As a real estate company owner beginning my 15th year of serving Santa Barbara, I look
forward to helping you buy or sell real estate property, and as always, personally dedicating
myself to striving for excellence in every transaction. My expertise and detailed knowledge of
properties includes Montecito, Hope Ranch, Carpinteria, Summerland, Goleta, Santa Barbara,
and all the surrounding beach communities.”
Over $400,000,000
Sold Since January 1, 2000 Among the top 10 agents in Santa Barbara
(per MLS Statistics in Gross Sales Volume)
• Intensive Marketing Plan for
each listing
• Member, Santa Barbara, Ventura,
and Santa Ynez Real Estate
Boards
• Expert witness in Real Estate
and Divorce Matters, and Estate
Planning
• Licensed Attorney, Professor
Real Estate Laws Course at
SBCC
1086 Coast Village Road, Santa Barbara, California 93108 • Office 805 969-1258 • Cell 805 455-8910
To view my listings visit www.garygoldberg.net • Email gary@coastalrealty.com
36

Lawyer Santa Barbara Official Publication of the Santa Barbara County Bar Association

Transcription

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