of the San Bernardino County Bar Association Vol. 38, No. 7 Our 135th Year May 2010 Attorney and Law Librarian Edwin C. Butler is

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1 B U L L E T I N of the San Bernardino County Bar Association Vol. 38, No. 7 Our 135th Year May 2010 From the President s Desk by Thomas W. Dominick In Memoriam - Edwin C. Butler It is with a heavy heart that I begin my remarks with a report of the passing of Ed Butler, Branch Manager of the San Bernardino County Law Library and fellow attorney. Ed had been a great friend to the Bar Association, having contributed numerous articles to our Bulletin which included judicial and attorney profiles and provided coverage of Bar events. Ed also used his journalistic talents writing for newsletters of the Southern California Association of Law Libraries and the Council of California County Law Libraries. I was fortunate enough to have worked with Ed over my six years as a director of the Bar Association. Ed earned his bachelor s degree from UC Riverside, a Master s degree in journalism from UCLA and his law degree from Southern California Southern Law School in Riverside. He joined the law library in 1990, ultimately becoming manager of both the Victorville and Rancho Cucamonga branches. Ed s skills, dedication, kindness and great sense of humor will be missed by those who knew him. I would like to thank all who kindly provided comments on Ed which appear in this edition of the Bulletin. Honesty is the Best Policy - Benjamin Franklin Franklin s quote instantly came to mind while my wife, Deborah, and I were watching golf on television a couple of weeks ago. While honesty certainly is the best policy, it may not be the most lucrative one at least for PGA golfer Brian Davis of Great Britain. Davis found himself in a sudden death playoff with veteran Jim Furyk, the world s sixth-ranked player, at the Verizon Heritage Tournament in Hilton Head, South Carolina. Davis, who had never won on the PGA Tour, made a birdie on the 72nd hole to force the playoff. Unfortunately, his approach shot on the playoff hole rolled off the green into an area of the beach where his ball was partially surrounded by reeds. During his backswing, his wedge nicked a dead reed which had been lying behind his ball ( loose impediment ). Davis immediately called a 2-stroke penalty on himself. He called for a rules official who, after checking the television replay, confirmed the penalty. He then conceded victory to Furyk, who putted out for the victory. It was one of those things, I thought I saw movement out of the corner of my eye. And I thought we d check on TV, and indeed there was movement, Davis said. The decision to call the penalty cost Davis a chance at winning an additional $411,000 (the difference (Continued on page 2) Edwin Butler Remembered as Wonderful and Remarkable Gentleman by J Amy Pacheco Attorney and Law Librarian Edwin C. Butler is remembered as a wonderful and remarkable gentleman who never had an unkind word to say about anyone. Butler, who managed the Rancho Cucamonga and Victorville branches of the Law Library for San Bernardino County, died Saturday, April 3, 2010 following a recent illness. He was one of those rare people who is always willing to take on more, and just had a smile and a kind word for everyone, said San Bernardino Superior Court Judge Keith Davis. I don t think I ever heard him say an unkind word about anyone. If he didn t have something nice to say, he said nothing. Davis, who serves as president of the Board of Trustees for the library, said the staff at the library absolutely loved him, as did the board. We all knew how fortunate we were to have him with us, he said. He was one of the kindest and gentlest souls you could ever come across. I will miss him terribly. Claire Furness, executive director for the San Bernardino County Bar Association, worked closely with Butler. A former journalist, Butler was a regular contributor to the organization s monthly publication, covering events and writing judicial profiles. Ed s most endearing quality, aside from his infectious laugh, was his modest manner, she recalled. He never made anyone he interviewed -- or even spoke to -- feel uncomfortable. He was always humble, honest and kind in any situation. I will miss his subtle sense of humor and that laugh - I will miss Ed s laugh most of all. Retired Superior Court Judge Frederick Mandabach said he was really saddened to learn of Butler s passing. Mandabach initially met Butler at the law library, and discovered the two shared common interests in books and computers. When Butler passed the bar, Mandabach administered the oath. Mandabach also served on the Board of Trustees for the law library. He described Butler as a very bright person who certainly knew his way around books. He was a gentle soul with a wry sense of humor, Mandabach recalled. I thought he was a real asset to the legal system. I will miss him. Hugh Treacy, associate director for the law library at Whittier Law School, described Butler as a wonderful colleague and friend. Treacy, who is also vice-president of the Southern California Association of Law Libraries and former chair of the association s newsletter committee, said he enjoyed working with Butler, who was also a member. (Continued on page 4)

2 2 San Bernardino County Bar Association May President s Desk (from page 1) between first and second place) and his first tour victory. Golf is a game of honor and integrity. It is often referred to as a gentleman s game. It was truly awesome to see an athlete choose honesty over money, something inconceivable in most other sports where competitors take pride in getting every edge they can. As it turns out, Davis decision has earned him a lot of respect in the golf world. Within minutes of the end of the tournament, his agent received a flood of s and telephone messages congratulating Davis and thanking him for being honest in following the spirit of the game. Many messages came from parents who used Davis as an example to their children about doing the right thing. Davis is a class act! He should be lauded for his conduct, and his example should serve as a reminder to us all of the importance of honesty and integrity in our dealings with our clients, opposing counsel and the court. Law Day Proclamation In last month s Bulletin, I talked about the history of Law Day and some of the activities which have been organized by members of our Bar. On April 27, 2010, I had the pleasure of attending the San Bernardino County Board of Supervisors meeting where the board adopted and presented our Bar with a proclamation SBCBA Mentoring Program declaring May 1, 2010 as Law Day in the County of San Bernardino. The proclamation reads: WHEREAS, the Board of Supervisors of the County of San Bernardino, State of California, does hereby recognize the importance of educating our community on the importance and responsibilities of law, and does hereby proclaim May 1, 2010, to be Law Day in the County of San Bernardino. Further, the members of this Board recognize this year s Law Day theme, Law in the 21st Century: Enduring Traditions, Emerging Challenges, and urge the citizens, schools, businesses, legal professionals, and media to use this occasion to preserve and strengthen the rule of law. Many thanks to Bar board members Chris Gardner, Barbara Keough and John Zitny for attending. San Bernardino County Public Defender Doreen Boxer was also on hand to receive the proclamation on behalf of her office. I also want to express my great appreciation The San Bernardino County Bar Association s Mentoring Program is designed to allow new lawyers an opportunity to learn and utilize valuable practice tips related to the practice of a specific area of law from seasoned, experienced local lawyers. The following lawyers have agreed to be on the mentoring program: Bradley White (Employment Law) Eric R. Hunt(Social Sec. Disability Law) David Call(Criminal Defense) William D. Shapiro(Personal Injury) Nicole Anderson(Dep. Law 00 WIC) Michael Scafiddi(DUI/DMV Hearings) Janet Stouder-Brandon(Family Law) Tom Dominick(Probate) Emile Mullick (Federal Civil Rights) Help is now a phone call away. To learn more about this new program, or add your name to the list, please contact our Bar Association Staff at (909) to Chris Gardner for spearheading the law day activities throughout the County as he has done in past years. DCA Outreach Plus Program a Success On April 28, 2010, several members of our Bar Association joined six justices from the Fourth District Court of Appeal, Division 2, at Aquinas High School in San Bernardino where the Court conducted oral argument on two live cases before more than 300 students. After the hearings, the justices, together with court staff and Bar members, split up to visit classrooms and speak to students about the law and the importance of staying in school. Since 2002 when Presiding Justice Manuel Ramirez established the program, over 8,000 high school students have had the opportunity to observe these hearings at their schools. The students and faculty were very appreciative of the opportunity to observe the proceedings and meet with the lawyers and judges. I wish to personally thank Justice Ramirez, as well as Associate Justices Thomas Hollenhorst, Jeffrey King, Art McKinster, Betty Richli and Douglas Miller and Bar members Michael Scaffidi, Wayne Tucker, Barbara Keough, Khymberli Apaloo, Kevin Bevins and Diane Anderson for their participation. Thanks also to the attorneys who argued the cases, Deputy Attorneys General William Wood and Charles Ragland and appointed defense counsel Athena Shudde and Ann Bergen. Lastly, kudos to the court s staff members and CHP Officer Brad Dennis for organizing and running the program. State Bar Board of Governors Proposed Redistricting If you haven t already heard, the State Bar Board of Governors has proposed a change in the composition of seven of the nine bar districts, as well as the number of the elected seats in four districts. San Bernardino and Riverside counties are currently part of District 6, which includes the coastal counties of Ventura, Santa Barbara and San Luis Obispo. The district has one seat on the Board of Governors. If the redistricting proposal is implemented, San Bernardino and Riverside counties would join District 9, which would have two seats on the board and would be comprised of the two Inland Empire counties as well as San Diego and Imperial counties. Unfortunately, San Diego county has 14,306 active lawyers, San Bernardino has 2,206, Riverside has 2,963 and Imperial has 145. In the absence of a rotation (Continued on page 6)

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4 4 San Bernardino County Bar Association May 2010 Edwin Butler Remembered... (from page 1) His commitment to the task of writing was as evident as was the high quality of his written work; and his articles were always the first to arrive at my desk, Treacy recalled. I especially enjoyed the calm, capable demeanor he displayed at every meeting and SCALL gathering he attended. I will miss him greatly. Attorney Sandra Turner worked closely with Butler on the High Desert Bar Association s annual MCLE cruises. She described herself as in shock to hear of his death. Turner said Butler was instrumental in helping her gather materials for the organization s MCLE events as well as the cruises, one of which he attended and served as Turner s assistant. He will be very much missed, she stated. Over the years, Ed made many contributions to the Law Library and the greater legal community, Larry Meyer, director of the Law Library for San Bernardino, wrote on behalf of the staff and board. Ed s skills, dedication and strong sense of right and wrong will be missed. Butler earned his Bachelor s Degree from the University of California, Riverside, majoring in sociology. He earned a Master s Degree in journalism from the University of California, Los Angeles in He spent 17 years working as a journalist, writing for a number of newspapers including the Hemet News, the Porterville Recorder, the Enterprise-Record, The Independent, and the Fontana Herald-News, where he served as managing editor. Butler subsequently enrolled in law school, and earned his law degree from California Southern Law School. He was admitted to the bar in He joined the Law Library for San Bernardino in 1990, ultimately becoming manager of both the Victorville and Rancho Cucamonga branches. Butler was a member of Society of Professional Journalists and Sigma Delta Chi; the Southern California Association of Law Libraries (SCALL) and the American Association of Law Libraries (AALL). He is survived by his mother, Freida Butler, and his brother-in-law, Doug Austin. A memorial service is scheduled for May 1 at 2 p.m. at the Center for Spiritual Living, Murietta Road, Sun City, CA. Condolence cards may be dropped off at any branch of the Law Library for San Bernardino County, and will be forwarded to the family. Reprinted with permission from the San Bernardino Bulletin, a Metropolitan News publication. Ed Butler Remembered by Friends and Associates Edwin Clinton Butler is perhaps known best in the legal community as a patiently helpful law librarian and as the author of the BenchMarks series of judicial profiles (see sbcba.org.judges). A private man, I knew Ed only as my quietly dignified colleague. I met Ed in 1992 when we both worked at the SB County Law Library. I admired the ease with which he guided hundreds of library patrons along the pathway of legal research from treatise to digest, from reporter to citator. Clearing the brambles, he introduced them to his friends, the Messers Witkin, West, and Shepard. Self-help patrons and attorneys alike were treated with equal humble respect. In 2002, Ed joined the illustrious roster of graduates of Cal Southern Law School, becoming the 223,275th member of the State Bar of California. I was privileged to be invited to his private induction ceremony. Although he never practiced law per se, this accomplishment facilitated his elevation to that of head librarian at the West End Branch of the Law Library for San Bernardino County a post well-served by Mr. Butler, Esq. In 2003, we invited Ed, formerly a reporter for the Riverside Press Enterprise, to express his literary talents through the Bulletin of the San Bernardino County Bar Association. His new beat was the Bench. Ed s respectful rapport with the judges coupled with his facility with the language made the BenchMarks series of judicial profiles the quintessence of expository disquisition concise yet informative. Those fortunate to be so immortalized are revealed in the Bar Bulletin and online at sbcba.org/ judges/. We bid farewell to Ed Butler with saddened hearts, but know that he lives on in the legacy of his work with and for the Inland Empire legal community. Allen C. Turner Cuenca, Ecuador As a law library clerk a few years ago, I had the pleasure of working with Ed at the San Bernardino County Law Library. As a Branch Manager, he was a professional, dedicated, and hardworking individual, who knew of vast legal resources in and out of the library. Ed was friendly and approachable to any question from patrons and the library staff. He was a gentleman and very conscientious of not ever speaking negatively about anybody. As a communicator, he was outstanding; his selection and usage of words in writing and speech were precise. He was also an inspiration to me in my repeated attempts to study for my bar exam. He continuously encouraged my efforts and lent me his entire collection of bar study material. My last activity with Ed was the 2009 Arrowhead Regional Medical Center 5K Walk/Run, less than three months after his heart surgery. We had finished at the tail-end of hundreds of participants with even women pushing strollers quickly passing us by. Fortunately, I had the privilege of enjoying a long conversation with Ed throughout our casual stroll. Among many other lessons Ed taught me, he demonstrated to me that day one need not have to be the fastest, merely finishing is sufficient. Geneva Carreon Through the grapevine, I was sorry to learn of Ed s death. He was the managing editor of the then Carpinteria Herald and Montecito Life community newspapers, in the Santa Barbara area, for several years prior to my ownership and into 1986, before moving on. He was indefatigable in the pursuit of news, worked endless hours and was truly beloved by the communities the newspapers served. While it s been several years since I last saw him, he periodically came by our plant to say hello to old friends that still work with me in our newspaper printing operation. Ed was a great, likable guy, and I just hate to think he is no longer with us. Jesse Roth President, Western Web Printing, Inc. Goleta, CA

5 May 2010 Like so many that knew him, I was shocked and saddened to see that we had lost Attorney Ed Butler. Ed was always with us doing judicial or attorney profiles in the Bar Bulletin and living a life of service. I was honored once by being a subject of one of his profiles. He came by my office and conducted a very thorough interview for the article. Quite meticulous. But I was struck by how respectful and solicitous he was of me. Here he was doing me the favor but acted as if it was his great honor and pleasure to write of me. He was truly a fine fellow and the essence of a gentleman. While certainly a gentle soul, he sent a powerful message to all. You have value. His life was marked by honoring the worth of others. And, I offer, that makes his life the most valuable of all. James B. Hackleman I met Ed at the Victorville Law Library when I was in law school about 15 years ago. He was so patient and kind in helping me fumble through my first attempts at legal research. Later I would go to the library to study as I prepared for the bar exam and I observed Ed exhibit the same patience and kindness to others, particularly the lay people trying to represent themselves. I always enjoyed Ed s vignettes in the Bar Bulletin. He did a fabulous job of presenting biographical information with a respectful but light hearted tone. Over the years I would see Ed at the law library regularly and at various bar events and always enjoyed my conversations with him. Although he was a quiet man, he had a great sense of humor and a twinkle in his eye when he laughed that I will never forget. Roberta Bobbi Taylor I knew Ed as a friend as well as the librarian. I first met him at the Victorville Law Library where he was most helpful to everyone. I then followed him to San Bernardino and his promotions there, working with him regularly in setting up the MCLE classes for the Annual Cruises I set up. Again he was always helpful, and kind and on top of everything. He came on one of our cruises and drove with me to and from the Port. He assisted me in every way on the ship and discussed matters with the other attorneys. Finally, he came to do an interview with me for the Bulletin, and came to my office and wrote a beautiful, articulate article making me look better than I could have done myself. He did this for all of the board members and several Judges in an accurate and tasteful way that everyone who read the Bulletin looked forward to reading. I will miss him. Sandy Turner I knew Ed and he was always very helpful at the library. I was concerned when they moved the library out of the courthouse (family court services needed the space)... In fact, after the library was in the hopping center, we received better service because of Ed. His articles on judges, etc. in the Bar Bulletin were very perceptive. He will be missed. Margaret Helen Arter I had contact with Mr. Butler when he would call to make an appointment with one of our judges to write a profile article. He was always so polite, courteous, thoughtful in letting me know how come needed a particular date or time. Mr. Butler would work hard at trying to make it convenient for the judge, yet meet his deadline. He would always call me back after I confirmed date and time and thank me for my assistance. He had such a pleasant, cheerful voice. You knew he loved his work. Mr. Butler did such a great job and I always found his profiles of our judges Weldon L. Brown State Court Receiver Trustee Referee Member of California Receivers Forum 5 interesting and enjoyable reading. You would get to learn and see another side of them. Gloria Yard Anytime I needed to do research at the County Law Library located in Victorville, whether as a law student or as a practicing attorney, if Ed was there he was so incredibly helpful. He knew where every possible source of information was and actually helped you find it. He was so patient when it came to helping people deal with both the online research tools and the temperamental copier. He went far beyond the what you want is over there [and point] attitude that so many people who work with the public seem to have. He treated everyone who came into the library the same - whether it was a member of the bar or a member of the public. I also enjoyed reading his articles in the Bar Bulletin. They were written with the same respectful attitude he displayed in his everyday life. I will miss Ed very, very much. Joelle Lee A. Nicol, Esq. I was saddened when I heard of Ed s passing. While going to school, I worked with him for a couple of years at the Victorville Law Library; those were wonderful memories and great learning tools for my future. Ed s kindness and astuteness were brilliant qualities of his personality. We both grew up in Illinois and would talk about our childhood with camaraderie. As years passed, I would stop in from time to time to say hello. The Law Library will not be the same without him. I will surely miss him. Mary Gray Paralegal Ed was a sweet and unassuming man who was selfless in his treatment of others. There was a goodness that flowed through him, and we who knew him were better for it. He was with us, and then left us like a cool breeze blown off a crystal clear lake in the springtime. Gary Wenkle Smith WELDON L. BROWN COMPANY INC LaMart Drive / Riverside, CA (951) (909) Fax (951)

6 6 San Bernardino County Bar Association May 2010 President s Desk (from page 2) agreement, such as District 6 counties had for a number of years, San Diego would have enough votes to fill both seats on the Board of Governors and the Inland Empire counties would literally have no voice at the State Bar level. A more detailed discussion of the proposal and its ramifications is in J Amy Pacheco s article in the April 19 edition of the San Bernardino Bulletin. If you have not had a chance to see it, I commend it to your reading. Several members of our Bar have expressed valid concerns that the proposed redistricting will only further disenfranchise the Inland Empire from participation at the State Bar. I can tell you that if this measure is ultimately approved, Riverside President Harry Histen and I will endeavor to work out a rotation agreement with San Diego and Imperial County Bar representatives. Public comment on the proposal must be received by May 14, 2010 and should be directed to Pat Bermudez, Office of General Counsel, State Bar of California, 180 Howard Street, San Francisco, California Bar Business and Coming Events April was a busy month for Bar events and May is shaping up to be an even busier one. The Bench-Bar Symposium on civil practice issues was held on April 8. San Bernardino County Superior Court Presiding Judge Douglas Elwell gave us an update on the state of the courts. (Please see page 9 for a full report on this segment of the symposium.) It was exciting to hear that construction of the new County courthouse in San Bernardino is slated to begin next January. Construction is expected to take about two years and the project is on schedule and under budget. Justice Thomas Hollenhorst gave a talk on the Appellate Court s tentative opinion program. Judge Donald Alvarez discussed law and motion issues with emphasis on recent cases in the areas of attorney-client and work product privileges and summary judgment motions, Judge Joseph Brisco discussed writs of mandate and Wayne Tucker talked about alternative dispute resolution and civil practice. On May 4, the annual Red Mass will be held at 6:00 p.m. at St. Francis de Sales Catholic Church in Riverside. Former Assistant U.S. Attorney John Rayburn is slated to receive the St. Thomas More Award at a reception following the mass. All members of the legal and law enforcement communities are encouraged to attend. On May 6 from 4:30 p.m. to 7:30 p.m., the Inland Empire Counties Legal Services and Public Service Law Corporation of the Riverside County Bar Association will co-host a wine and cheese benefit event entitled Celebrating Equal Access to Justice. It will include wine tasting and a silent auction and it takes place at the Riverside City Grier Pavilion, 3900 Main Street, 7th Floor. Tickets are only $20 per person. For more information, contact Annette Johnson at (951) / ajohnson@icls.org. On May 12 from 5:30 p.m. to 7:30 p.m., the Joseph B. Campbell Inn of Court will hold its monthly meeting and where the topic will be Effective Advocacy in ADR. Also on May 12, the High Desert Bar Association s probate section will hold a noon meeting at the Victorville Golf Course. I understand Attorney Jeanne Kennedy will talk about certificates of independent review. On May 13 from 5:30 p.m. to 8:30 p.m., the Bar Association will hold the Bench-Bar Symposium on family law practice issues at the San Bernardino Hilton. Judge Elwell will present his usual update on the state of the courts and I understand Commissioners David Proulx, Michael Gassner, Michael Torchia and Diane Anderson are the scheduled speakers, as is Robin Sherman-Young, Director of Family and Children Services. The topics will include the Elkins Commission Report and child support modifications. On May 20, the Inland Empire Legal Association of Women, in celebration of its first anniversary, will hold an event featuring United States District Court Judge Virginia Philips. The event will take place at the San Bernardino Hilton from 5:30 p.m. to 8:30 p.m. On May 25, the Federal Bar Association, Inland Empire Chapter, will hold its 11th Annual Constitutional Law Forum featuring Dean and distinguished professor of law Erwin Chemerinsky. This event will be held at the San Bernardino Hilton from noon to 1:30 p.m. Finally, the annual Kaufman/Campbell Awards dinner will take place on May 27 at the San Bernardino Hilton where two outstanding judges from the Inland Empire, James C. McGuire and J. Michael Welch, will be honored. I encourage all of you to make plans to attend one or more of these events and get to know more of your colleagues. Lastly, be sure to mark your calendars for the Bar Association s annual meeting which will take place in June at noon at the San Bernardino Hilton. Also, the annual Bar Association golf tournament has been scheduled for Friday, October 22 at Shandin Hills Golf Course in San Bernardino. This is always one of our biggest social events of the year.

7 May 2010 The oldest continuously active bar association in California 7

8 8 San Bernardino County Bar Association May 2010 The San Bernardino County Bar Association and the Superior Court of the County of San Bernardino are pleased to present the 2010 BENCH BAR SYMPOSIUM: FAMILY LAW PRACTICE ISSUES THURSDAY, MAY 13, :30 to 8:00 p.m. Update on the San Bernardino Courts Presiding Judge Douglas Elwell Current Issues in Family Law Commissioner David Proulx Commissioner Michael Gassner Commissioner Michael Torchia Commissioner Diane Anderson and Robin Sherman-Young, Director of Family & Children Services Topics to Include: Elkins Commission Report and Child Support Modifications in these Challenging Economic Times $40 members, $50 non-members Includes buffet, materials and program. 2.0 hours MCLE (includes 0.5 ethics) San Bernardino County Bar Association, a California State Bar-approved MCLE provider, certifies that this activity is approved for MCLE in the amounts of 1.5 hours of general credit and 0.5 hour ethics credit by the California State Bar. Register Now! Online: Phone: 909/

9 May Local Courts Probably Okay for Upcoming Fiscal Year -- Judge By J Amy Pacheco The state budget proposal currently on the table in Sacramento was more genteel to the judicial branch than last year s, and means San Bernardino courts will probably be okay for the budget year, Presiding Judge Douglas Elwell said Thursday. We ve been prudent, we ve been cautious, and we re moving forward, Elwell said. I don t anticipate, at this point, having to engage in any layoffs. That s something that means a great deal to us. In a state of the courts addressed delivered during a civil bench-bar symposium hosted by the San Bernardino County Bar Association, the jurist cautioned that the situation remains iffy until more concrete budget numbers develop from May revisions between the governor and legislators. The following year, he opined, looks pretty grim. If this continues for a year or two more, we re talking about a significant shutting down of judicial services in the state of California; significant restrictions on access to justice, he warned. We hope it doesn t come to that. Money for a new San Bernardino courthouse, however, has been committed and set aside. The criminal courthouse, he said, is expected to house 36 courtrooms on 11 floors, and will cost one-third of a billion dollars. Elwell described it as a premier courthouse project for California. We expect to have a shovel in the ground in January 2011, he said. Construction is expected to take about two years. This presupposes that we do not run into any spotted toads or pottery shards. The project is currently on schedule and under budget, he added. Construction on the site, which is now used for court parking, means parking in downtown San Bernardino will be a zoo for several years, Elwell cautioned. Court officials are working with the county to identify spaces that can be used for parking, with off-site, shuttle-serviced locations being considered. I m telling you now, it is going to be a problem, he emphasized. Authorization has been granted for a courtroom upgrade project in Chino, where a third courtroom on the second floor will be completed for use as a trial courtroom. Elwell said the layout of the room makes it ideal for civil trials. A Fontana project adding two new courtrooms and a new jury assembly room is nearing completion, he said. Authorization has been granted for another courtroom, which will be designed to handle high-volume, non-jury matters such as traffic, small claims and unlawful detainers. That project is expected to be completed in September or October. The seismic retrofit of the historic Central courthouse should be finished by the end of this year, he added. The historic courthouse will ultimately be used for civil matters only, with the t-wing used for clerical functions and file storage only. The Victorville court, he observed, is probably the single most impacted court we have, particularly with respect to our family law and civil cases. Court officials are currently working with the Administrative Office of the Court s real estate services to locate off-site space in Victorville to house some of the court s functions. Whether or not we ll accomplish this with the budget constraints, I don t know, he admitted. But sometimes if you work hard at it and you re creative, money seems to find a way of appearing. Elwell lauded the San Bernardino County civil bar for working cooperatively to keep civil cases moving through the courts. Contrasting it with other counties that have had to shutter their civil courtrooms, Elwell credited the collaborative nature of the San Bernardino civil bar for avoiding a similar situation locally. It s very much appreciated, and not taken for granted, he stated. He cautioned those present that local civil practitioners need to use due diligence to ensure payment of extra filing fees on civil cases. You are not happy, your clients are not happy, and we are not happy about the extra filing fees, he said. But they have to be paid. Elwell said the courts have faced a continuing battle to collect the fees, and currently have over $3,600 in fees outstanding due to non-sufficient checks. In the past two years, he added, those outstanding fees have reached as much as $45,000. Elwell said the courts are willing to work with attorneys, but cautioned that if the situation isn t resolved, the courts will consider hiring a collection agency which would report to credit reporting agencies as well as the State Bar. We don t want to go there, he said. Reprinted with permission from the San Bernardino Bulletin, a Metropolitan News publication. TRUTH VERIFICATION MICHAEL B. LYNCH, MA Polygraph Examiner Since 1974 Member - American Polygraph Association Primary Instructor - APA Accredited School Bachelor of Science - Criminal Justice Master of Arts - Public Administration Twenty years experience in law enforcement ü Speci ic Issue Criminal and Civil Examinations ü Pre-Trial Quality Control (951) mlynch@lawyerspolygraph.com

10 10 San Bernardino County Bar Association May 2010

11 May The oldest continuously active bar association in California A New Benefit For SBCBA Members! Enjoy the special membership benefits offered by SBCBA from LexisNexis! Save up to 40% off Your NEW Subscription to LexisNexis Online Research and/or 20% off LEADING TITLES of Matthew Bender Books, please contact Brooks Hoppe at Official Publisher for California lexis.com offers courtapproved headnotes and summaries written by California attorney-editors Only Shepard s Citations Service provides full spectrum of analysis Access California s treatises from Matthew Bender LexisNexis 22 billion public records including SmartLinxTM Registered Nurse Plaintiff and Defense Consulting Expert Review medical records. Screen cases for relevance, merit. ð Identify medical issues that may have been overlooked. ð Liaison between attorney and healthcare providers, experts. ð ð Betty A. Lyons, RN, WCC, CLNC Medical Malpractice/Criminal Law/Personal Injury Elder Abuse/Wrongful Death/Pressure Ulcers/Falls Surgical Failures & Retained Objects LegalNurseBetty@roadrunner.com No Consult is too Big or too Small Non-Attorney Member Inland Empire Legal Association of Women Improve your internet presence SmartLinx is a trademark; Shepard s, LexisNexis & lexis.com are registered trademarks of Reed Elsevier Properties, Inc All rights reserved.!"#"$ %&'()*')!"#"$ %"+(,'-*. //0/ ELWOOD M. RICH JUDGE OF THE SUPERIOR COURT, (RET.) JUDGE FOR 28 YEARS MEDIATIONS ARBITRATIONS INDEPENDENT ADR (951) CALIFORNIA SOUTHERN LAW SCHOOL 3775 ELIZABETH ST. RIVERSIDE CA 92506

12 12 San Bernardino County Bar Association May 2010 Arbitration After Burlage By Wendy Lascher We look to legal precedent in deciding cases. We believe the law is predictable and provides litigants and counsel a reasonable degree of certainty. True, but not always. Burlage v. Superior Court (2009) 178 Cal.App.4th 524 (review denied). The Burlage decision will makes every case that goes to arbitration less predictable - and more costly. Most California lawyers and judges, and even the two justices in the Burlage majority, had previously believed that a court may not review the merits of an arbitrator s reasoning, even when an error of law is apparent on the face of the award and causes substantial injustice. This is the teaching of Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1. In Burlage, however, Presiding Justice Arthur Gilbert and Associate Justice Kenneth Yegan upheld a trial court s order setting aside an arbitration award because the arbitrator concluded that some defense evidence about damages was irrelevant, and granted a motion in limine to exclude it. They held that Code of Civil Procedure (a)(5) requires reversal if the court determines [that]...the rights of the party were substantially prejudiced by the refusal of the arbitrators... to hear evidence material to the controversy... Dissenting Associate Justice Steven Perren wrote that great mischief can and will result from his colleagues decision. Will it? The Hard Facts That Made Bad Law In 2003, the Burlages bought an expensive house from Martha Spencer for $1.75 million. The standard California Association of Realtors contract required arbitration of any ensuing disputes. The house had undisclosed defects. Its iron fence and swimming pool encroached on the neighboring property, the pool encroached on a storm drain and related easement belonging to the homeowners association, and the roof leaked badly. To address the encroachment problem, the Burlages attorney negotiated to obtain a lot line adjustment, for which the Burlages title company paid $10,000 and the Burlages paid $950. It took well over two years to complete the lot line adjustment process, increasing remodeling costs, and the Burlages were required to pay their own lawyer, not to mention other expenses and investment of personal time. The Burlages expert identified $557,700 to $662,700 of damages, including $112,500 for loss of property value due to the encroachment. The parties agreed to arbitrate the Burlages claim for breach of contract and fraud. During arbitration, a dispute arose about the correct method of valuing damages for the encroachment. The Burlages relied on a case holding that damages are to be assessed as of the date of the fraudulent transaction while Spencer relied on a different case holding that in setting fraud damages a factfinder could consider subsequent events. The arbitrator agreed with the Burlages, and granted their motion in limine to exclude evidence of how much the title company paid for the lot line adjustment. The arbitrator found fraud by Spencer and awarded $552,750 in compensatory damages, plus $225,000 in punitive damages and $740, in attorney s fees and costs. Without reviewing the arbitration transcript, Ventura Superior Court Judge William Liebmann granted Spencer s motion to vacate the award. He concluded that the arbitrator s evidentiary ruling directly affected the issue of damages, thereby substantially prejudicing [Spencer] s ability to dispute the amount of damages suffered by the Burlages. He ordered rehearing of the entire matter before a new arbitrator. The Court of Appeal affirmed Judge Liebmann, the majority taking the position that because Spencer was not permitted to introduce evidence of what the title company paid to resolve the encroachment issue the Burlages were awarded $1.5 million in compensatory and punitive damages they may not have suffered. Moncharsh Contemplated Finality Moncharsh says that [t]he arbitrator s decision should be the end, not the beginning, of the dispute. Both the state and national legislatures have endorsed consensual arbitration as a matter of policy. Does the Court of Appeal s decision, in the service of an illusory equitable ideal, conflict with this policy and the legal principles developed to implement it? Or does it merely, as Spencer s attorneys argued, take advantage of a safety valve the Legislature built into the arbitration statutes for cases such as this? Parties agree to arbitrate disputes in order to make dispute resolution simpler, quicker, less expensive and more final. They bargain for an expectation of finality once the arbitrator has ruled despite knowing that arbitrators, like judges, are fallible. That Way Production Co. v. Directors Guild of America, Inc. (1979) 96 Cal.App.3d 960, 965. That is why the Supreme Court recently reiterated that arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact... Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, The Court of Appeal majority, however, believed that tolerance for fallibility has its limits. and that section (a)(5) permits a court to intercede when an arbitrator has prevented a party from fairly presenting its case... It thought Spencer was treated unfairly because her damages expert was not allowed to testify that the title company solved the encroachment issue by paying $10,000 two years after the sale. Safety Valve for What? This rationale makes sense only if the Code of Civil Procedure allows a court to vacate awards based on substantive outcome. But (a)(5) focuses on procedural fairness, not the substance of arbitrators decisions. It addresses: the procurement of an award by fraud (paragraph (a)(1)); corruption ((a)(2)); misconduct ((a)(3)); arbitrators exceeding their powers ((a)(4)); refusal to postpone the hearing for cause ((a)(5)); and failure to disclose conflict of interest ((a)(6)). The statute requires fair opportunity, not the right to persuade the arbitrator of any party s position on the merits. Even if the statute did contemplate judicial reexamination of substantive legal rulings by arbitrators in cases of substantial prejudice, the Burlage decision does not suggest any

13 May guidelines for distinguishing a mere erroneous evidentiary ruling from one significant enough to justify setting aside an award. Is it the discrepancy between the amount the title company paid and the amount of the award? If so, at what dollar level does (a)(5) kick in? Is a court permitted to set aside an arbitration award without reading a transcript of the arbitration? A Court of Appeal could not reverse a trial court judgment for prejudicial error in excluding evidence without evaluating prejudice in light of the whole record, yet the Superior Court judge in Burlage did not read the arbitration transcript. If judicial review of arbitration awards is to be conducted differently than judicial review of trial court judgments, a subsequent decision must establish how that review is to be conducted. If parties wish to superimpose judicial review on arbitration - to contract for an appellate process - they certainly may do so. Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, But allowing them to obtain review under (a)(2) creates myriad problems. As Justice Perren noted, virtually every ruling excluding parol evidence, excluding privileged evidence or excluding hearsay - to name a few categories of evidentiary rulings - results in limiting the admissibility of evidence. Arbitration Will Cost More and Mean Less. Burlage eliminates the economy that arbitration is supposed to foster by exposing parties and arbitrators to significantly longer arbitration hearings. This is because attorneys will become much more reluctant to object to (and arbitrators more reluctant to exclude) evidence for fear a court will subsequently overturn the award based on evidence exclusion. If parties do not object, they run the risk of having the arbitrator consider evidence that the Legislature and/or the courts have previously determined should not be considered. But if they do object, they run the perhaps greater risk of wasting all the work and expense that went into preparing for and presenting a case at arbitration. Further, Burlage leaves no disincentive for a losing party to bring a motion to vacate in any case in which the arbitrator has excluded evidence. There can be little doubt that the majority opinion will encourage a storm of hyperanalytical challenges to arbitration awards that, until this decision, were final. Wendy Lascher is a State Bar certified specialist in appellate law. She practices in Ventura, She represented the Burlages in the Court of Appeal and their petition for review, which the Supreme Court denied by a 5-2 vote. 2010, Wendy Cole Lascher Wendy Cole Lascher is a State Bar certified specialist in appellate law and a member of the California and American Academies of Appellate Lawyers. This article first appeared in the March 2010 issues of the Santa Barbara Lawyer and the Ventura County Bar Association s CITATIONS. Redlands Arbitration and Mediation Services,Inc.... Builders of Bridges... FEATURED PANELISTS TIM CORCORAN RON WHITE STEVE WEINBERG M. WAYNE TUCKER LEIGH HARPER JAMES MCKANNA Top 50 Neutrals in California Commercial and Construction Cases Medical Malpractice and Personal Injury Cases Past-President San Bernardino County Bar Assoc. Respected Inland Empire Attorney Commercial and Tort Cases Harvard & Pepperdine Harvard & Pepperdine Pepperdine Pepperdine Pepperdine RAMS LOCATIONS Palm Desert Ontario Redlands (main office) ~ THE CONFLICT RESOLUTION SPECIALISTS ~ For scheduling, contact Tracie Grossi (909) A Plum Lane Redlands, CA rams@mediate.com

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Fully maintained building located in the Citibank Building downtown Redlands. $1,500 per month. Great space for attorney, accountant, insurance, or professional. Attn. Office Manager, Betty Auton-Beck, A Professional Law Corporation, 300 E. State Street, Suite 200, Redlands, CA 92373, bauton.beck@verizon.net or lisa.stinson@verizon.net, Tel. (909) ; Fax: (909) BANKRUPTCY, CIVIL OR CRIMINAL ATTORNEYS: Need a place to meet your high desert clients, but don t need a full office? Single designated office avail. in small family law firm - reasonable monthly rate.one block from V.V. Crthse. Secretarial services not inc. Call Jenine at FOR RENT: Directly across street from Victorville Courthouse sq. ft.; OR 16,555 sq. ft. single story, stand alone building. Call 760/ or 760/ ATTORNEYS WANTED! Downtown San Bdno., across from the court house. Office space avail. 250 to 7500 sq.ft. Well main. bldg w/county, Law offices and Court offices. Ample parking. 800/ OFFICE FOR RENT - FURNISHED. Spacious Redlands office, furniture included, kitchen/conference room privileges, internet access, fax/copier use available. Secretarial space also available. Contact 909/ OFFICE SPACE FOR RENT Legal office suite with mtn view; 3 attorney offices, secretarial, reception, and kitchen. Fully furnished and decorated; computer, copier and phone can be included. Prime downtown San Bdno location; walking distance from San Bdno Court. Secure building with parking. Please contact Aurora Alonzo at 909/ RANCHO CUCAMONGA OFFICE SPACE available. Walking distance to the Ranch Cucamonga Superior Court House. The lease can be the first floor of approx. 3,500 sq. ft. or can be subdivided into 2 offices of approx. 1,200 sq. ft. and 2,300 sq. ft. CONTACT Brit Barker at 909/ DOWNTOWN RIVERSIDE. New Construction. Contemporary Live/Work units on Market St., blocks away from the Inland Justice Center. Professional office suites square feet with attached 2BD/2BA beautiful upgraded apartment and garage. 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The San Bernardino City Attorney s Office is seeking an experienced civil litigator to handle a litigation caseload on a temporary basis for approximately four months during the summer of Public entity experience is preferred. Salary commensurate with experience. For application, contact the Office of the City Attorney, 300 North D Street, San Bernardino, CA 92418, (909) Resumes will not be accepted in lieu of applications. SEEKING ESTATE PLANNING AND CORPORATE PARALEGAL. Redlands Law Office seeks F/T estate planning/corporate paralegal w/minimum 2 years experience in drafting estate planning documents, deeds and preparing all transactional documents related to corporations, partnerships, LLCs and annual documents. Must be organized, have excellent writing, verbal skills. Compensation commensurate w/experience. Submit resume to Betty Auton-Beck, A Professional Law Corp., Attn. Office Mgr, 300 E. 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16 16 San Bernardino County Bar Association May 2010 BULLETIN of the San Bernardino County Bar Association California s Oldest Continuously Active Bar Association Organized December 11, 1875 In Affiliation with the High Desert Bar Association Board of Directors OFFICERS Thomas W. Dominick President John S. Lowenthal President-Elect Khymberli S. Apaloo Vice-President Bradley R. White Secretary-Treasurer Michael A. Scafiddi Immediate Past President Workers Compensation/Social Security Disability Issue? Laurence R. Lerner MAYBE WE CAN HELP! We have over 50 years experience in representing injured and disabled workers before the Workers Compensation Appeals Board and Social Security Administration. If you have clients who need help with Workers Compensation or Social Security problems, please have them call our office for a free consultation. We pay referral fees in accordance with State Bar Rule 2-200(A). Francisco T. Silva WORKERS COMPENSATION LAW CERTIFIED SPECIALISTS STATE BAR OF CALIFORNIA / BOARD OF LEGAL SPECIALIZATION Lerner, Moore, Silva, Cunningham & Rubel Ph: 909/ Fax: 909/ North Arrowhead Avenue, Suite 1 San Bernardino, California DIRECTORS-AT-LARGE Hon. Diane I. Anderson Kevin B. Bevins G. Christopher Gardner Jennifer M. Guenther Barbara A. Keough Matthew A. Marnell Sandy L. Turner John R. Zitny Executive Director Claire E. Furness The mission of the San Bernardino County Bar Association is to serve its members and the community and improve the system of justice. 555 North Arrowhead Avenue San Bernardino, CA (909) Fax: (909) bulletin@sbcba.org Web: The Bulletin of the San Bernardino County Bar Association is published 11 times a year. Our circulation is approximately 1,100, including: our bar membership of 900, 95 state and federal judges, state &local bar leaders, legislators, media, and businesses interested in the advancement of our mission. Articles, advertisements and notices should be received by the bar office no later than the fifteenth of the month prior to the month of publication. For current advertising rates, please call the number listed above. Please direct all correspondence to the above address.