Santa Barbara Lawyer. Official Publication of the Santa Barbara County Bar Association December 2012 Issue 483

Transcription

1 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association December 2012 Issue 483

2 2 Santa Barbara Lawyer

3 December

4 Catherine Swysen President Sanger, Swysen & Dunkle 125 De La Guerra Street, Ste. 102 Santa Barbara, CA T: ; F: Donna Lewis President Elect Attorney at Law 789 North Ontare Road Santa Barbara, CA T: ; F: Scott Campbell Secretary Rogers, Sheffield & Campbell, LLP 427 East Carrillo Street Santa Barbara, CA T: ; F: Matthew Clarke Chief Financial Officer Christman, Kelley & Clarke 1334 Anacapa St., Suite B Santa Barbara, CA T: ; F: matt@christmankelley.com Mack Staton Past President Special Projects Awards and Board Development Mullen & Henzell LLP 112 East Victoria Street Santa Barbara, CA T: ; F: mstaton@mullenlaw.com Marysol Bretado Events Attorney at Law 5733 Hollister Ave, Ste 4 Goleta, CA T: marysolbretadolaw@gmail.com Santa Barbara County Bar Association Officers and Directors Christine Chambers Santa Barbara Lawyer Hager Dowling Lim & Slack 319 E. Carrillo St. Santa Barbara, CA T: ; F: cchambers@hdlaw.com Danielle De Smeth Liaison / Events Attorney at Law 833 E. Anapamu Street Santa Barbara, CA T: danielle.de.smeth@gmail.com Naomi Dewey Santa Barbara Lawyer Hardin & Coffin 1531 Chapala St, Ste 1 Santa Barbara, CA T: ; F nrd@hardincoffin.com James Griffith Bench & Bar Attorney at Law 1129 State Street, Ste 30 Santa Barbara, CA T: ; F: jim@jamesgriffithlaw.com Brandi Redman MCLE Special Projects Attorney & Counselor at Law 1021 Laguna St Apt 8 Santa Barbara, CA T: ; Cell: b.redman@cox.net Angela Roach Bench & Bar Relations University of California Santa Barbara Employee and Labor Relations 3101 SAASB Santa Barbara, CA Angela.roach@hr.ucsb.edu Mission Statement Santa Barbara County Bar Association Kelly Scott MCLE Chief Deputy District Attorney Santa Barbara County District Attorney 312 E. Cook Street, Bldg. D Santa Maria, CA T: kdscott@co.santa-barbara.ca.us James sweeney Bench & Bar Allen & Kimbell, LLP 317 E. Carrillo Street Santa Barbara CA T: jsweeney@aklaw.net Lida Sideris Executive Director 15 W. Carrillo Street, Ste. 106 Santa Barbara, CA T: ; F: sblawdirector@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. Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2012 Santa Barbara County Bar Association CONTRIBUTING WRITERS Mark T. Coffin Donna Lewis Judge Frank J. Ochoa David C. Peterson Robert Sanger Catherine Swysen EDITOR Naomi Dewey ASSISTANT EDITORS Christine Chambers Lida Sideris MOTIONS EDITOR Michael Pasternak VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PROFILE EDITOR James P. Griffith PHOTO EDITOR Mike Lyons DESIGN Baushke Graphic Arts PRINT PRODUCTION Wilson Printing Submit all EDITORIAL matter to santabarbaralawyer@yahoo.com with submission in the subject line. Submit all MOTIONS matter to Michael Pasternak at pasterna@gmail.com. Submit all advertising to SBCBA, 15 W. Carrillo Street, Suite 106, Santa Barbara, CA phone , fax Classifieds can be ed to: sblawdirector@gmail.com 4 Santa Barbara Lawyer

5 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association December 2012 Issue 483 Articles 6 A Year in Review, By Catherine J. Swysen 8 Judge John F. McGregor Joins the Santa Barbara County Bench, By Catherine J. Swysen 10 The Myth of the Standard One-Year Construction Warranty, By Mark T. Coffin 14 On Receiving the John T. Rickard Award, By Judge Frank J. Ochoa, Jr. 20 Keep Your Cards Up: The 2012 California Conference of Bar Associations, By Donna Lewis 22 Epigenetics and the Epigenome Project, By Robert Sanger 24 Lack of Preparation: The Hidden Malpractice, By David C. Peterson Sections 25 Verdicts & Decisions 26 Motions 27 Classifieds 30 Calendar About the Cover: December s cover photograph was taken in Hawaii, and was submitted by Matthew N. Mong, an associate at Christman Kelley. Editor s Note: It has been a great pleasure to serve as Editor of Santa Barbara Lawyer this year. One of our greatest assets in this community is the talent and intellect of our attorneys, and working with regular contributors like Bob Sanger, David Hughes and Dave Peterson, to name just a few, has been a privilege. My year as editor started with an from David Hughes, who congratulated me on assuming a role I didn t yet know I had assumed, and went on to provide a host of articles about litigation first published in the Quibbler. David s public service and dedication is indicative of the spirit that has helped publish this magazine for so many years. The generosity of those that write for Santa Barbara Lawyer giving their time to inform and entertain our legal community is inspirational. In particle, I would like to thank Christine Chambers, who has diligently copyedited each article, a task that requires considerable skill (and sometimes diplomacy). Christine is leaving the Santa Barbara Lawyer team but will leave a legacy of good grammar and appropriate punctuation. In addition to Christine, Jim Griffith has served admirably as Profiles Editor, taking a thought-provoking and engaging look at local and national lawyers. Mike Lyons has attended and photographed almost every Bar Association event in 2012, and has agreed to return as Photo Editor for Mike Pasternak, also returning in 2013, has solicited, rounded up and edited our popular Motions section, and Lindsay Shinn will continue her work as Verdict editor, a task that requires her to navigate stormy waters as she searches for fair and balanced reporting. None of the work that the editorial team does would be effective without the wonderful support Naomi Dewey of Lida Sideris, Assistant Editor and Executive Director of the County Bar. Lida not only sells advertising, she copy-edits, proofs and provides captions tasks that the magazine would be hard-pressed to function without. Finally, as we finish up 2012, it is my great pleasure to introduce Santa Barbara Lawyer s incoming Editor for Angela Roach, a past-president of Santa Barbara Women Lawyers and a director of the Santa Barbara County Bar, will be taking over starting with the January issue. Angela, a labor attorney at UCSB, has a reputation for getting things done, and I have no doubt that Santa Barbara Lawyer will flourish under her leadership. December

6 President s Message A Year in Review By Catherine J. Swysen H ere we are. The year is drawing to a close and so is my presidency. It was a privilege to serve you but also great fun. I cannot thank enough the members of the Board and Lida Sideris, our wonderful Executive Director and the Association s backbone. It is their work and dedication that made this year a success. I hope that you enjoyed the many programs we offered throughout the year. The Bench and Bar Conference in January was a resounding success. Jennifer Hanharan accomplished a tour de force by bringing to the Conference three outstanding practitioners: Kyle Duncan and J. Gordon Cooney, the lawyers who argued the landmark case of Connick v. Thompson in front of the United States Supreme Court, and Theodore Boutrous, the lead attorney on the case challenging the ban on gay marriage, Proposition 8. Jon Streeter, our State Bar President, joined us in May to celebrate Law Day. This year s theme, No Courts, No Justice, No Freedom, was a reflection of the unprecedented challenges facing the judicial system today. Jon Streeter discussed the severe funding crisis and its impact on access to justice. The Santa Barbara County Bar Association joined the Open Courts Coalition to work towards finding solutions to this crisis and to help maintain the court services that tens of millions of California residents and employers depend upon every day. The Past Presidents Lunch was very special this year. We honored James DeLoreto, our oldest living past President (1954) and, at 64 years of membership, our longest running member. In September, the Bar sponsored a Hands-Only CPR Training in the Sunken Garden. Over 75 people came throughout the lunch hour to learn this easy life saving technique. Presiding Justice Arthur Gilbert, Associate Justices Ken- Access to justice is central to our mission. The Lawyer Referral Service is an important service the Bar provides to the community-atlarge. neth Yegan and Steve Perren, joined this year by Los Angeles Superior Court Judge Brian M. Hoffstadt, sitting Pro Tem, provided invaluable insights into appellate practice in the most entertaining way. Division Six is no doubt the wittiest division in California! Special thanks to Angela Roach who was instrumental in making the Annual Justices Reception the success it was! Catherine Swysen And of course, the MCLE Committee, headed by Kelly Scott, made sure to offer interesting continuing education lunch programs throughout the year. Kelly will not be able to continue to serve on the Board next year due to her appointment to the position of Chief Deputy District Attorney for the Santa Maria Office. She will be sorely missed. Thank you Naomi Dewey and Christine Chambers for publishing, every month, a high quality magazine. I know how demanding this assignment is. Well wishes to Christine who will leave the Board next year to sing in a local choir. I am looking forward to attending her performances. Thank you also to Michael Lyons, who has served as photo editor for Santa Barbara Lawyer, and also attended and photographed many of our events this year. Access to justice is central to our mission. The Lawyer Referral Service is an important service the Bar provides to the community-at-large. Lida Sideris worked tirelessly to promote the LRS. As a result, the LRS is financially selfsufficient. This year, it handled an average of 169 calls a month and its panel is 35 members strong. Finally, I would like to take a moment to remember two of our colleagues we lost to illness this year. Rick Lee passed away in January and Michael Ganshow in May. Their families will be in our thoughts during this holiday season. Now it is time to pass the torch to Donna Lewis. I truly appreciate the support she gave me all year long. She will be a great President! Happy Holidays to all! Stay well and may 2013 bring you joy, happiness and success. 6 Santa Barbara Lawyer

7 Legal News John Reyes, Eric Woosley, judicial honoree Hon. Frank Ochoa, Jr. and former assemblymember Pedro Nava. Santa Barbara County Bar members and friends gathered for our Annual Dinner in November to celebrate pro-bono, humanitarian and judicial award winners. See more photos on the center spread. Second District Supervisor Janet Wolf, pro bono honoree Emily Allen and incoming 2013 SBCBA President Donna Lewis. December

8 Legal News Judge John F. McGregor Joins the Santa Barbara County Bench By Catherine J. Swysen On October 19, 2012, John F. McGregor was sworn in as the newest member of the Santa Barbara County Superior Court bench in a special en banc court session. The Honorable Arthur A. Garcia, the Assistant Presiding Judge for Santa Barbara County, presided over the enrobing ceremony. Governor Brown appointed Judge McGregor on August 7, 2012, to fill the vacancy created by the retirement of Judge James W. Brown. After Judge Brown retired, Judge Herman moved from North County to South County leaving a position open in Santa Maria. At the time of his appointment, Judge McGregor had been serving for the past eight years as a court commissioner. Judge McGregor is a native of Poughkeepsie, New York. After earning a Bachelor of Arts degree from Fairfield University in Connecticut, he came to California to attend Pepperdine University School of Law. Judge McGregor started his career in Los Angeles before moving to Santa Maria in There, to his amazement, he found a legal community where lawyers, staff, court clerks and judges worked together to serve their clients in a collegial atmosphere. He was a sole practitioner from 1990 until 2003 when he was appointed commissioner. He also served as a partner in the North County Conflict Defense Team, which provides legal representation to indigent criminal defendants when the Public Defender s Office has a conflict. Quoting a line from a Brad Paisley song, Anyone who s anywhere has some help getting there, it s true, Judge McGregor, during an emotional address, thanked the many people who made it possible for him to become a lawyer and a judge: his late mother, his third grade teacher, his wife of 34 years and their three daughters, his law office staff, and his colleagues. Judge McGregor said he would strive to become half the judge his mentor, Judge Rodney Melville, was. He practiced many years in front of Judge Melville, appearing in hundreds of hearings and many trials. He remembered the thoughtful, gentle manner in which Judge Melville listened to the evidence, his willingness to have hearings even when the issues were mundane, and his insistence that lawyers uphold the standards of dignity that he set. Judge McGregor told the assembly that the answer to the serious problems caused by the budget cuts and the transfer of thousands of prisoners from state to local control is to ensure that the judicial system gets the respect it deserves. As Judge Melville always said, it happens only when lawyers and judges treat each other civilly, and believe in and respect what they do, the process and the institution. Judge McGregor will continue to sit in Department 9 in Santa Maria, handling over 500 criminal cases a week with the help of his judicial assistants, Patty Blaylock and Adriana Navato, and his bailiff, Deputy Freddy Cortez. As to what lawyers appearing before him can expect, Judge McGregor said, I don t claim to be the brightest crayon in the box or the sharpest knife in the drawer. There s a good argument that I m a few fries short of a Happy Meal, but I will treat you with respect. I will listen, I will make a decision, and I will do the next indicated thing with a smile. Catherine Swysen is the outgoing Santa Barbara County Bar Association President. She practices criminal law with Sanger, Swysen & Dunkle in Santa Barbara. Hon. John F. McGregor taking the oath from Hon. Rodney Melville (ret.). 8 Santa Barbara Lawyer

9 Legal News Above: Hon. John F. McGregor with the judges and commissioners of Santa Barbara Superior Court. Below: Guests at Judge McGregor s enrobing ceremony in Solvang. ATTORNEYS: STRENGTHEN YOUR TEAM WITH PARALEGAL TRAINING. Paralegals can bring better service to the client and decrease your workload, while providing a higher profit margin. You remain competitive and are able to serve more clients. Is there someone in your office who could benefit from paralegal training? UCSANTABARBARA EXTENSION PARALEGAL PROFESSIONAL CERTIFICATE PROGRAM Classes begin Jan. 7. For questions regarding the program, contact paralegal@els.ucsb.edu, To enroll call or visit extension.ucsb.edu December

10 Legal News The Myth of the Standard One-Year Construction Warranty By Mark T. Coffin There is a widely-held perception that there is a standard one-year warranty for construction work in California. I am not sure where this belief comes from, although I have a few ideas. If it does exist, when does this standard warranty apply, and what does it cover? Will a contractor s legal exposure for breach of warranty end after a year? As you might guess, the answers to these seemingly simple questions are not so simple (at least not to a lawyer!). Construction warranties can be divided into two general categories: express (written) and implied (oral) warranties. Although one-year warranties are frequently seen in construction contracts, there is no one-size-fits-all time period that automatically applies in all situations. In fact, one possible explanation for the one-year myth is that several nationally-recognized organizations (such as the AIA, for example) include express one-year warranties in their form contracts. Subject to certain consumer protection statutes however, written warranties can be for as long as the contractor cares to make them, and may specifically disclaim or limit warranties associated with construction work. What if there is no written contract, or the written contract does not address warranty at all? California recognizes the legal principle of implied warranties associated with construction contracts. Enforceable contracts may: 1.) be completely verbal 2.) consist of a signed, accepted bid, or 3.) may be created when construction actually begins, assuming the parties had a clear understanding of price and scope of work. Once a contractor completes the work, the law will imply a warranty that the work was done in a workmanlike manner, according to current construction practices, applicable codes and regulations. Implied warranties can also be imposed by statute. How long does an implied warranty last? Several additional questions come into play, such as what kind of construction project is involved, and what kind of trades, services, or products were provided. New Residential Construction Since 2003, new residential construction sold in Cali- fornia has been subject to a statute commonly known as SB 800, which imposes a mandatory one-year fit and finish warranty on contractors. (Civil Code 900.) This particular code is probably the closest thing to a standard one-year warranty in California. The term fit and finish is not defined in the statute, but is generally understood to apply to aesthetic elements such as cabinets, countertops, mirrors, painted finishes, and exterior and interior walls. Functional defects (for example structural or water intrusion problems) are also addressed in SB 800, and several different categories of defects are each given their own mandatory statute of limitations period. The longest such period is ten years, which pertains to structural defects. SB 800 does not apply to remodels, condo conversions, or non-residential projects. (Civil Code 896.) Under SB 800, the outside limit limitations period runs from 10 years after substantial completion. (Civil Code 941(a).) However, the statute was intended to protect home buyers. For that reason, the statutory 1-, 2-, 4- and 5- year warranties all run from the close of escrow. (Civil Code 896.) Keep in mind that a home or condo many not sell until well after completion of construction, and many contractors may not even know when a sale occurs! A builder may choose to offer an enhanced warranty, known as an enhanced protection agreement. (Civil Code 901.) A builder offering this enhanced warranty may choose to be subject to its own express contractual provisions, in place of the terms set out in SB 800. However, an enhanced warranty cannot diminish the statutory warranty protections. Non-Residential Construction Commercial/industrial projects, remodels, or residential construction sold before 2003 are not subject to SB 800. For those types of projects, implied warranties are subject to different time periods. The statute of limitations for a breach of written contract (whether express or implied) is four years from the date of the breach. (Code of Civil Procedure 337.) An implied warranty based on oral contract has a time limit of two years. (CCP 339.) Typically these periods are triggered by the date when an owner detects damage which clearly results from defective construction. It should be noted that warranty duties are normally owed to the owner or party that a builder has contracted with. However, non-contracting parties can bring different legal theories against a contractor, such as negligence, strict liability, and nuisance. In these situations, the outside time limit for a claim is often measured by the nature of Continued on page Santa Barbara Lawyer

11 Our path. We share a life s worth. You ve worked hard to build a wonderful life together. To preserve and grow what you ve earned takes expert financial advice and comprehensive personalized planning, the kind provided by the experienced Wealth Management team at Montecito Bank & Trust. Protecting what you value most in life one of the many Paths to prosperity you ll find at Montecito Bank & Trust. What s your path? WEALTH MANAGEMENT Trust Services Estate Services Investment Management Philanthropic Services Advisory Services Visit us on the web at montecito.com Santa Barbara (805) Solvang (805) Ventura & Westlake Village (805) December

12 Legal News Coffin, continued from page 10 the defect itself. Patent defects which are obvious to the naked eye have a four-year statutory period. (CCP ) However, a contractor can be liable for latent, or hidden defects for up to ten years. (CCP ) Both statutes are triggered by substantial completion of the improvement, and apply to both warranty and non-warranty claims. Essentially the same time periods apply to an owner s right to file a complaint with the Contractor s State License Board four years for patent defects, and ten years for latent defects. (Business & Professions Code 7091(a) & (b).) This article was written by Mark T. Coffin Mr. Coffin is a partner in Hardin & Coffin LLP, and has been specializing in Construction Law for 20 years. In addition to his law degree, Mr. Coffin has a master s degree in business administration and belongs to a number of construction trade associations. He can be contacted at Products & Materials So far we have discussed warranty issues relevant to contractors i.e. businesses that perform the service of construction. A separate body of law found in the California Commercial Code typically applies to suppliers of construction products and materials. (Where a construction contract involves both goods and services, courts will examine the essence of the transaction to see which element predominates.) In addition to express warranties, the Commercial Code deals with two kinds of implied warranties: 1.) implied warranties of merchantability (that the product is of the quality that a buyer would reasonably expect) and 2.) implied warranties of fitness for a particular purpose (based on some advertising or prior communications that the product will meet the buyer s particular expectations). Under the Commercial Code, the time period for a breach of oral or written warranty is four years after the claim accrues. (The parties can contract to reduce this period to not less than one year, but cannot extend it.) Accrual can be a fact-intensive determination, but generally means that both the breach and damage have occurred, and are known to the claimant. If the warranty pertains to future performance, the four-year period starts when the claimant knew or should have known of the breach. (Cal. Commercial Code 2725.) If you have made it to the end of this article, you realize that analyzing warranty issues in a given situation can be complex, and there is no such thing as a standard one-year construction warranty. Also, statutes of limitation can be subject to a number of exceptions, which attorneys representing warranty claimants typically try to find and exploit. This article is intended for general information, not legal advice, and is not an exhaustive discussion of the complex issues associated with the statutes and their exceptions. If you have a question or a case that concerns a statute of limitation, you should consult an attorney. 12 Santa Barbara Lawyer

13 December

14 SBCBA Community On Receiving the John T. Rickard Award By Judge Frank J. Ochoa, Jr. Editor s note: The following article reflects remarks made at the SBCBA s Annual Dinner by Judge Ochoa on receiving the John T. Rickard Award. Judge Ochoa was honored in particular for his services to increasing diversity on the bench and his work with the Latina/Latino Lawyer s Association in Santa Barbara County. The majestic Santa Barbara Mission is rightfully coined the Queen of the California Missions. It is truly a magnificent structure, and the surrounding area is idyllic and pastoral, despite its semi-urban setting. Within its beautiful, yet hallowed surrounding grounds lay the remains of many of the significant personages who forged the Santa Barbara community as it exists today. There lie De la Guerras, Cotas, Covarrubias, Orenas and Rickards. The epitaph on one crypt reads, Father, Mayor, Judge, and Gentleman. Those words aptly describe the life of one of the De la Guerra clan, John T. Rickard. And they do so in a more interchangeable manner than is often imagined. It is truly an esteemed honor to receive the John T. Rickard Judicial Service Award from the Santa Barbara County Bar Association at this time. Our recollections of Judge Rickard have been revived by the news of late, because it has been deemed appropriate for a new Santa Barbara Airport facility to carry his name into our community s future. And it is the case that Judge Rickard, although a great father to five natural sons, was, beyond that, a true paternal figure to our entire community in so many ways. We more recent arrivals now know the history of Judge Rickard s service as Mayor of Santa Barbara. The archives have been dusted off, revealing how he worked in Sacramento to script and encourage the enactment of legislation which would redefine our community. Some might have, at the time, used the term gerrymander to describe his reconfiguration of the boundaries of the City such that it would include the distant airport grounds out next to the University, allowing the City to have an airport within its geographical confines. He also fathered the local environmental movement by writing and cajoling forward the passage of state legislation banning off-shore oil rigs along the Santa Barbara coastline. He convinced oil industry representatives, through individual entreaties and organized personal visits to our local area, that to do so was correct from a purely esthetic point of view. The other initiatives he engendered or developed which sculpted the growth and definition of the Santa Barbara community are too numerous to catalogue here. His family s contributions to our state s history go back to its beginning. Ancestor Pablo de la Guerra was the Santa Barbara representative to California s first state convention in He served in the California State Senate and as California s Lieutenant Governor. Among his innumerable notable contributions to our newly born state: in 1855, as the sole Mexican American in the California Senate, he rose to speak against a land law proposal, which would disenfranchise former Mexican landholders of their long held properties. He said, in part, Of the 113 members of this Legislature, I am the only native of this state, and the native population expect from me, that I shall call the attention of this body to the facts I have now stated (regarding dispossession of their properties), and to tell you that badly treated as they have been in every respect, they look around them and find no other aid except in the mercy of Heaven, and the justice of this Legislature. And now in their name, I call upon you, Senators, to consider that if they are deprived of what is left to them, they have no other place to go to. They have been rejected by the Mexicans; they know no other country but California; and by depriving them of their rights, they will be compelled to be beggars in the streets; and in order to prevent this terrible calamity from overtaking them, they, through me, throw themselves upon your mercy and clemency; and they ask and expect from you protection that will justify before the eyes of the world the belief in justice of the American people. With such an oratorical lineage, is there any doubt regarding the abilities of John Rickard to impact the course of history? That ancestor, Pablo de la Guerra, was elected a California state court judge for the First Judicial District in Santa Barbara in The local representative of the People of the State filed suit, claiming that Judge De la Guerra was not qualified to hold public office, because he had not become a citizen under the Treaty of Guadalupe Hidalgo, which had ended the war. In a landmark decision, the California Supreme Court ruled that De la Guerra was a citizen under the provisions of the Treaty, and that he was qualified to Continued on page Santa Barbara Lawyer

15 McIvers&Slater_7.5x4.5_2011 5/4/11 3:52 PM Page 2 McIvers & Slater Mediation and Arbitration Kevin Thomas McIvers kmcivers@mciversandslater.com Hon. James M. Slater 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) December

16 Katy Graham, Renee Nordstrand, Tom Hinshaw, Commissioner Pauline Maxwell, Alicia Campbell SBCBA celebrates award recipients Emily Allen, Jody Kaufman, Tara Haaland-Ford and Judge Ochoa at the 2012 Annual Dinner Emily Allen, Mayor Helene Schneider, Vicki Allen, and 2012 SBCBA President Catherine Swysen 2013 SBCBA President Donna Lewis and Tom Hinshaw Hon. Frank Ochoa, Jr. and Hon. Brian Hill Brandi Redman and Hon. Colleen Sterne 16 Santa Barbara Lawyer

17 From upper left: June Anderle, Saji Dias Gunawardane, Hon. Thomas P. Anderle, Commissioner Pauline Maxwell. Left, Colette Petti and Jerry Amberger. Above, Betty L. Jeppesen and Marcus Bird. Jennifer Smith, Elizabeth Diaz, Ellen Goodstein, Jody Kaufman, Brian Thompson, Brandi Redman December

18 DaviD K. HugHes retired trial Attorney ArbitrAtion v ChristiAn ConCiliAtion Contact David at or dklk@cox.net nominal Fees & Pro bono Work Streamlined Approach ~ Results ~ Cost Effective (Fee Structures for Every Size Case; No Add-On Charges ) Victoria Lindenauer, Esq. Mediator 18 Santa Barbara Lawyer

19 SBCBA Community Ochoa, continued from page 14 hold the Santa Barbara office to which he had been duly elected. For you historians, or Judge Pat McMahon devotees, you can see People v. De la Guerra (1870) 40 Cal Nearly 100 years later, De la Guerra s ancestor, John T. Rickard, was appointed a Judge of the Santa Barbara Superior Court. He was an outstanding Judge who was universally respected as a gentleman who controlled his courtroom with a firm, but even hand. One young prosecutor, early in Rickard s career, who had lost a point of law said, Rickard is so damn fair he could judge his own mother. Former Santa Barbara County District Attorney Tom Sneddon was awed that Judge Rickard s demeanor would remain calm, even in the most explosive and bitter of court cases. Rickard s decisions were always meticulously researched. Sneddon said, He was a true prince of a man, and a giant in his profession. Another of Santa Barbara County s District Attorneys, Stan Roden, recalled an early felony trial he handled in The well known defendant was charged with grand theft auto. He had stolen a fancy automobile in Santa Barbara and had driven it to Mexico. The only eyewitness to the crime was a policeman from a small town in Mexico. On the day of trial, the defendant fell ill and the case had to be continued one week. The out-of-country witness informed Roden that he would not be allowed to return in a week, signaling the demise of the criminal case. Judge Rickard in his inimitably thoughtful and deliberate manner, retired to chambers for 20 minutes. He then called all staff and the witness in, and engaged the witness in his impeccable Spanish. He established a rapport with the Mexican policeman and learned the Police Chief s name. He then procured some fancy stationary and a wax candle. He wrote a letter to the Police Chief which, when translated for the record, left Roden with the impression that the Judge would have made Shakespeare look like a weak communicator. He had extolled the virtues of the great country of Mexico, and the beauty of the state where the town was located, which he and his family had visited many times. He relayed the status of the defendant as a pinnacle of Santa Barbara society, and explained that justice, which is the bedrock of civil society, could not be achieved in this defendant s case without this most important witness. He concluded by urging the Most Honorable Jefe. to return the witness to court the next week. After asking the prosecution and defense if they had anything to add, he carefully folded the letter, placed it gingerly in the envelope, lit a match, and melted the bottom end of the candle, allowing it to drip over the envelope flap. By Roden s account, with a flourish and dignity that only Rickard could pull off, the judge gracefully embossed an impression of his University of Santa Clara ring into the wax. According to Roden, a Spanish king would not have done this with less flair. And, the Treaty of Guadalupe Hidalgo probably looked less impressive. A week later, the witness showed up on time. He handed the judge a letter from his Jefe which matched Judge Rickard s communication in tone and politeness. I still recall, as a young attorney recently hired as the Executive Director of the Legal Aid Foundation of Santa Barbara County, sitting in the back of Judge Rickard s courtroom waiting for my domestic violence restraining order case to be called. Even the way Judge Rickard assumed the bench manifested dignity. His perpetual patience and respect, and his evident preparation and impeccable knowledge of the law have been models for me to endeavor to emulate ever since. But the strongest impression Judge Rickard made on me was when I saw a somewhat disheveled Mejicano worker who had somehow navigated getting his case onto calendar to request some minor fine extension or program re-referral, approach counsel table after his name was called. It quickly became apparent that the person only spoke Spanish and that there was no interpreter available to assist him. Judge Rickard deftly switched into Spanish and courteously engaged the litigant regarding his needs with the court. The judge gained an understanding of the person s problem and informed him as to how to proceed in order to resolve the issue. He then explained what he had done on the record in English. The Spanish speaker, who was initially intimidated and withdrawn, appeared to have been uplifted and left with a sense of satisfaction and a glint of pride that the system could actually understand him. Judge Rickard, despite the pressures of burgeoning caseloads, me-first priorities, and the contentious litigation process, took the time to do individual justice, even in the smallest of cases. Judge Rickard s initial descriptor, sculpted into that final resting place, as a father, I would contend, extends far beyond the biological and nurturing roles of a natural father. I know he served as a paternal figure to me, as a model for judicial temperament and scholarship throughout my tenure on the bench. To receive an award bearing his name causes both humbling gratitude and reflective pride in the community I have had the pleasure of serving for more than three decades. -Thank You. December

20 Legal News Keep Your Cards Up: The 2012 California Conference of Bar Associations By Donna Lewis E ach fall, the Conference of California Bar Associations (CCBA), a nonprofit comprised of bar associations, meets to discuss and vote on proposed changes to state law. Traditionally held at the same time and in the same town as the Annual Meeting of the State Bar Association, this year the Conference took place in Monterey. The mission of CCBA is to improve the laws and administration of justice in California. CCBA member delegates meet to determine changes to state law it will seek in the state legislature. Proposed changes range from practicalities such as simplifying service on residents of gated communities, to sweeping concepts such as Civil Gideon which is shorthand for an extension of Gideon vs. Wainwright to the civil arena. A dozen of CCBA s proposals were enacted by the legislature in In 2013, delegates attended the conference as representatives of Santa Barbara County Bar Association Betty L. Jeppesen, Sue McCollum, Tim Metzinger, E. Patrick Morris and Donna Lewis. SBCBA sends 5 delegates to ensure that it would be able to vote at full strength for every resolution. SBCBA has three seats, and at least three delegates were present at all times and voted on every resolution. Votes on about a fifth of the resolutions were separated by three votes or less, making it clear that if SBCBA had not been present, many votes could have gone the other way. Before the conference, the SBCBA delegation evaluated 60 legislative proposals from all over the state and met to discuss the lion s share of them. Our delegation s position on each resolution was included in CCBA s summary of positions of all participating bar associations. Parliamentary procedure is used through application of Robert s Rules of Order. The efficiency and fairness of this process were unexpectedly impressive. When the vote is too close to call from the dais, votes, made by having delegates hold aloft their voting card, are counted mechanically. This takes long enough for the chair to need to exhort voters to keep their cards up. During this process, a trivia question is posed and delegates compete. Tim and Betty won on questions about Monterey. Santa Barbara delegates Donna Lewis, Betty L. Jeppesen, Sue McCollum and E. Patrick Morris. In 2012, the CCBA was able, through its lobbyist, to convert a dozen of its resolutions into state law. This reflects its substantial clout. It is our body for positive change. Now is the time to ask yourself if you have a principled fix for something about state law that has been irking you. If so, any SBCBA member may submit a request for a change in said law. Look for the chair in the Section Head listing of each Santa Barbara Lawyer magazine. Specify the code section(s) involved, flag the problem language, and explain your fix. Getting it submitted no later than allows the delegation to do the work needed to prep it for submission by CCBA s February 2013 deadline. SBCBA maintains a link on its website as a resource about activities of CCBA: In addition, any SBCBA member may give input on pending CCBA resolutions and reasons for supporting or opposing them. Resolutions are posted on the CCBA website: html. Those interested in serving on the delegation in the future should let a SBCBA officer know by August 1 st of the year before the conference. This lead time is necessary to comply with SBCBA bylaws relating to election of our delegates. The SBCBA looks forward to hearing from you on the state law changes you desire as well as your ideas and preferences on MCLE, social functions, the SBCBA annual Bench and Bar Conference, the Lawyer Referral Service, Santa Barbara Lawyer magazine, and our fee arbitration program. Weigh in. We are your association. Donna Lewis is the 2013 SBCBA president. Her practice emphasizes employment law and business law. 20 Santa Barbara Lawyer