NORTH COUNTY. L a w y e r PUBLICATION OF THE. VOL. 31, NO. 3 MARCH 2014

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1 NORTH COUNTY L a w y e r PUBLICATION OF THE VOL. 31, NO. 3 MARCH 2014

2 Lawyer North County Published by the North County Bar Association (760) * Fax (760) Web: 249 S. Indiana Ave., 2nd Floor; Vista, CA P.O. Box 2381 Vista, CA NCBA Mary Silva, Executive Director P.O. Box 2381; Vista, CA North County Bar Association Our mission is to promote professional excellence, camaraderie, philanthropy and community outreach Board of Directors: Debra Leffler Streeter, President Rafael Acosta, Vice President/Treasurer Eric Ginder, Vice President/Secretary Aaron Hanes, Vice President Susan Curran, Vice President Katie Anderson, Director Amber Crothall, Director Robert Daniels, Director Michael Doukas, Director Debra Lewis, Director Deborah Nash, Director Mark Reichenthal, Director Joseph Stine, Director Contents Letter from the Editors 3 President's Perspective 5 Duties To Release Files Upon Client Discharge 6 Appellate Notes 8 California Community Association Update 10 #crimpro 12 Networking 14 Youth In Court 18 Classifieds 26 MCLE Calendar 27 March Dinner 28 Staff: Mary Silva, Executive Director Rosemary Contreras, Membership Coordinator Laurel Cliff, Volunteer Magazine Co-Editors: Wayne Templin, Vik Chaudhry, and Audrey Thornton Editorial Committee: Rafael Acosta Deborah Bayus Vik Chaudhry Brenda Geiger Aaron Hanes Bill Kamenjarin Jeffrey Lacy Ken Lynch Hon. David Moon Thomas Penfield Mary Silva Dennis Stubblefield Wayne Templin Audrey Thornton The North County Lawyer Magazine is published monthly by the North County Bar Association. Subscriptions, articles, photos and advertising should be submitted to: NCBA, P. O. Box 2381, Vista, CA or or (760) The subscription rate for non-members is $40 per year. Deadline for submissions is the 1st of the month prior to publication. The North County Lawyer reserves the right to edit all submissions. 2 North County Lawyer

3 Letter from the Editors By Vik Chaudhry, Wayne Templin and Audrey Thornton O ur issue this month ranges from surprising hands-on advice to the ivory tower of appeals. This month Ellen Peck explains when we are required to release a client's file to a dissatisfied client and how this should be accomplished. Eric Ganci informs us that one can be actually be charged with a felony for carrying someone else's prescription medication when they go to CVS to pick it up for the other person. Back in the ivory tower, Richard Kohn describes the importance of filing a protective cross-appeal. And for those interested in looking back in time at our legal community, I want to direct the reader to the historical article written by Mary V.J. Calaldo entitled: "Youth in Court." Spring is coming! Enjoy your reading and please send us any comments you may have. We are always looking for articles to publish so let us know if you would like to write one, or of any proposed topics you would like us to consider. Articles can be from words and should be submitted in a Word attachment by to the bar office at - Audrey Powers Thornton Why belong to Listserv discussion group? Discussion lists are ideal for exchanging expertise, obtaining feedback and fostering collaboration among group members. Copy the link below to join a Listserv discussion group: NCBA Family Law Listserv: com/listmanager/listinfo/ncba-family NCBA Civil Litigation Listserv: listinfo/ncba-civil For calendar changes or additions, please visit us at NCBA Estates Law Listserv: March

4 2013 Fragomen N County Bar - 1st Proof.pdf 1 8/29/2013 8:25:40 PM 4 North County Lawyer

5 President's Perspective Looking for Ways to Serve our Legal Community? There are so many ways that we can give back to our community. It can be through a local church, serving on the board of a non-profit organization, by volunteering at a soup kitchen, a kid s school or coaching a kid s soccer team. Many of us also provide pro bono services. Whether it be through representing victims of domestic violence, low-income residents subject to unlawful detainer actions, or filling out applications for veterans for aid and attendance, like me. Even the Girl Scouts have Operation Thin Mint where girls like my daughter are encouraged to get donations so boxes of Thin Mints can be sent to active military serving overseas. The Servicemembers Civil Relief Act is another way that we, as lawyers, can serve our community. SCRA provides that active military should receive a stay in a civil lawsuit or family court action. The courts have an obligation to assign an attorney to verify whether person named in the action is actually on active duty and if so, obtain a stay of the proceedings. However, there is a problem when the court does not have attorneys available to appoint in these cases. A joint operation was established in 2008 between the San Diego County Bar Association, the North County Bar Association, Navy Legal Services, and the Marine Corps. The North County Bar Association agreed to take all cases assigned through the North County Superior Court. We are in need of volunteers. We need attorneys to help with family law matters, general civil and unlawful detainer actions. You do not need experience. Training is offered. The only requirement is that you carry malpractice insurance because this is administered through the Lawyer Referral Service. Please contact Mary Silva at the bar office at for an SCRA application and requirements. Wayne Templin has taken the lead with this program and offered a training earlier this month. Another March 2014 training will be scheduled soon. Watch for the announcements or contact Wayne or Mary Silva for the details. This is a great opportunity for experienced and new attorneys to support our community. Whether you view this as a way to support our military, or as a way to support the North County Superior Court, step up and volunteer a few hours to help our local North County community! Debra Leffler Streeter President March Dinner Meeting Thursday, March 20, 2014 "The Six Minute Closing: Selling Big Cases In Little Time" By Distinguished Trial Attorney John Gomez & Associates from the Gomez Law Firm at The Crossings in Carlsbad at 5:30 p.m. 5

6 DUTY TO RELEASE FILES UPON CLIENT DISCHARGE By Ellen R. Peck All rights reserved Periwinkle ( Peri ) Maison is a plaintiff s personal injury lawyer serving the North San Diego County area. Peri represented Velma Victim in her plaintiff s personal injury action against Defendant until yesterday, when Peri received an from Velma firing her and asking that Velma s file be given to Able Attorney immediately. Does Peri have to turn over Velma s file to Able? Under rule 3-700(D)(1), California Rules of Professional Conduct ( CRPC ), after Velma s termination and request for the file, absent any protective order or non-disclosure agreement, Peri has a duty to promptly release to Velma or her agent, all client papers and property. But CRPC 3-700(A)(1) prohibits a member from withdrawing from employment in a proceeding before a tribunal without its permission. Accordingly, even though Velma has fired Peri, California law provides that the attorney remains the attorney of record until a substitution of counsel form is filed with the court, or the Court has otherwise granted permission. (See Code Civ. Proc., 284; State Bar Fml. Op ) Even though Peri has been discharged, she still duties of competence to Velma under CRPC 3-110(A) to protect Velma s interests until Peri is substituted out with the filing of a substitution form or until Peri is permitted to withdraw by the Court. (Cal. State Bar Fml. Op ) Peri may retain possession and control of the file only to the extent necessary to represent Velma competently and fulfill any outstanding obligations to the court arising out of that representation. However, Peri may not withhold the file in order to obtain payment or other consideration from the client in exchange for the delivery of the file to the client. Peri should make the file available to Velma or Able and provide a copy thereof upon demand. (Cal. State Bar Fml. Op ) court until a substitution is filed or (2) She can permit access to the original file and provide a copy to Able upon demand until the substitution is filed or the Court orders her withdrawal after a properly noticed motion. Assuming that a substitution of attorney is filed, how long does Peri have to release the file? We do not know. There is no authority construing what the word promptly means in the context of CRPC 3-700(D)(1). Discipline has been imposed for retention of a file for two months. (Matter of Brockway (Rev. Dept. 2006) 4 Cal.State Bar Ct. Rptr. 944,958; see also Matter of Myrdall (Review Dept.1995) 3 Cal. State Bar Ct. Rptr. 363, 377- Because of exigencies in case, client s new attorney requested delivery of file within 10 day; delivery within 2 months not prompt.).) Peri could be civilly responsible for any damage Velma suffers in litigation caused by the failure to release or make the file available. The last paragraph of the Discussion suggests that the rule is not violated by a lawyer s retaining the file for a period of time to make a copy of the file for the lawyer s use: Paragraph (D) is not intended to prohibit a member from making, at the member's own expense, and retaining copies of papers released to the client, nor to prohibit a claim for the recovery of the So Peri has a choice: (1) She can forward the original file to Able and keep a copy of the file for herself in order to discharge her obligations to Velma and the Continued on page 20 6 North County Lawyer

7 Superior Court Annual Bench Conduct and Demeanor Training The Annual Bench Conduct and Demeanor Training for Temporary Judges / Settlement conference attorneys. The Probate Court is looking for qualified Pro Tem Judges and MSC settlement Judges, and the below seminar is one of the first steps in that process. (The Vista Court is also seeking Small Claims and Traffic Pro Tems so this training does double duty, and you get MCLE, including ethics credit!!!) North County Superior Court Date: Friday, March 21, 2014 Registration: 1:00 p.m. 1:25 p.m. Program Time: 1:30 p.m. to 4:30 p.m. Location: Vista Courthouse (325 S. Melrose Drive Jury Lounge; Vista, CA 92081) Pleasse visit the court s website at: Please call or Amber Scott, info below, if you would like to reserve a space for this class or if you have any questions regarding the Temporary Judge / Settlement Conference Attorney program. Amber Scott Temporary Judge Administrator / Volunteer Coordinator Public Affairs & Community Outreach (PACO) (MS C-44; 220 W. Broadway; San Diego, CA 92101) Phone - 619/ ; Fax - 619/ Mark A. Chambers Attorney at Law FEDERAL COURT FELONY AND MISDEMEANOR REPRESENTATION Mark A. Chambers 345 W. Ninth Avenue Suite 200 Escondido, California (760) SUPERIOR COURT FELONY AND MISDEMEANOR REPRESENTATION JUVENILE COURT CRIMINAL MATTERS Personal Service to Each Client 31 Years of Quality Criminal Law Experience March

8 APPELLATE NOTES By Richard I. Kohn, Esq. How a Protective Cross-Appeal Will Protect Your Client (and You!) The most interesting and rewarding aspect of appellate work is drafting briefs and arguing the case before the court. As with other areas of law, the most tedious is mastering the myriad of rules and appellate procedures. But between these poles lie strategies and tactics. One such strategy is the protective cross-appeal. If you re not familiar with protective cross-appeals, this article will acquaint you with what they are, why they re important, and when to use them. I ll use a hypothetical to introduce you to protective cross-appeals. Suppose your client, Mr. Loser, loses at trial. You move for a new trial, which is granted. The prevailing party Ms. Winner, then files an appeal from the order granting the new trial. Obviously, you must defend against that appeal. If Ms. Winner loses her appeal, the new trial will proceed, making you and Mr. Loser happy. But suppose Ms. Winner wins the appeal, overturning the new trial order and reinstating her judgment? Since there will be no new trial, you are now faced with Ms. Winner enforcing her judgment, and you now would like to appeal the original judgment. Can you still do so? Rule 8.104(a)(1) of the California Rules of Court provides the normal deadline for filing a notice of appeal in a non-limited civil case (i.e., $25,000 or less is at issue): Unless a statute or rule provides otherwise, a notice of appeal must be filed on or before the earliest of: (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment. The 180 day provision rarely comes into play, so the time to appeal is generally 60 days after being served with the notice of the judgment. But by now, given the time it probably took for Ms. Winner s appeal, the 60 day period for Mr. Loser to appeal the original judgment has no doubt long since passed. What can you do now? Have you committed malpractice? YES! Filing a notice of appeal is jurisdictional, i.e., only a timely filed notice of appeal can invoke appellate court jurisdiction. See California Rules of Court, Rule 8.104(b); Van Beurden Ins. Servs., Inc. V. Customized Worldwide Weather Ins. Agency Inc. (1997) 15 CA 4th 51, 61 CR 2d 166. The way to protect Mr. Loser s right to appeal from the original, now-reinstated judgment is to file a protective cross-appeal from the original judgment soon after Ms. Winner filed her appeal from the order granting the new trial motion. A protective cross-appeal preserves a party s right to appeal from the judgment upon its reinstatement. (California Civil Appellate Practice, 3rd edition, Continuing Education of the Bar, 8.7) This strategy is vital regarding granted, but ultimately overturned, motions for a new trial, motions to vacate the judgment, and JNOVs. Under California Rules of Court 8.108(g), the time for Mr. Loser to appeal the original 8 North County Lawyer

9 Ordas Dispute Resolution Complex Disputes + Creative Solutions = Resolution judgment is extended until 20 days after the clerk serves notification of Ms. Winner s appeal, but watch the overall time deadline, because timely filing of a notice of crossappeal is also jurisdictional. Therefore, to properly represent Mr. Loser, you must not only defend against Ms. Winner s appeal and simultaneously file a protective cross-appeal. If Ms. Winner loses her appeal (the Court of Appeal finds that the new trial order should be affirmed), Mr. Loser s cross-appeal will be deemed moot and therefore dismissed, and the new trial will proceed. (See California Civil Appellate Practice, supra, 8.50). Richard I. Kohn can be reached at: Telephone Dale E. Ordas Mediator - Arbitrator - SB #38140 Ordas Dispute Resolution Patience, persistence and prudence are more than an alliteration, they are part of a skills set for the resolution of your dispute. 300 Carlsbad Village Dr., Ste 108A Carlsbad, CA Mobile Fax years as an arbitrator & mediator plus 30 years as a litigator. Training: Hundreds of hours at Straus Institute at Pepperdine University, Loyola Law School, Southern California Mediation Association & Association for Conflict Resolution Mediation/Arbitration of Commercial Disputes: Regarding terms or conditions of agreements for goods, services, real estate or property Employment: Wrongful Termination, Grievances, Harassment, Wage & Hour Torts: Accidents (Workplace Accidents & Workers Compensation) Product Liability, Professional Liability, Toxic Torts and Asbestos BANKRUPTCY AND CREDITOR HARASSMENT DOAN LAW FIRM, LLP CALIFORNIA S LARGEST FAMILY LAW FIRM "EXPERIENCE, REPUTATION, AND AGGRESSIVE REPRESENTATION AT AFFORDABLE FEES" Referral Fees Paid in Accordance with Rule DOANLAW.COM BANKRUPTCY $ 100 Starts most cases Over 25,000 Consumer Bankruptcies Filed Chapter 7 Discharge Guarantee Foreclosure Relief Thru Chapter 13 Mortgage Removal Thru Chapter 13 Michael Doan is a Certified Bankruptcy Specialist - Consumer Bankruptcy Law - American Board of Certification CREDITOR HARASSMENT We Sue Bill Collectors, Inside and Outside of Bankruptcy Immediately Stop All Creditor Harassment Credit Card Defense FDCPA, FCRA, RFDCPA, TCPA CLAIMS Debt Settlement SAN DIEGO COUNTY'S LARGEST BANKRUPTCY CASE FILING FIRM 5 Offices Throughout San Diego County 2850 PIO PICO DRIVE SUITE D CARLSBAD, CA PHONE: (760) FAX: (760) EAST SECOND AVENUE, SUITE 108 ESCONDIDO, CA PHONE: (760) FAX: (760) LA MESA BLVD SUITE 300-G LA MESA, CA PHONE: (619) FAX: (619) WEST F STREET SUITE 100 SAN DIEGO, CA PHONE: (619) FAX: (760) H STREET SUITE 5000 CHULA VISTA, CA PHONE: (619) FAX: (619) March

10 California Community Association Update By Deborah F. Bayus, Esq. Over the last 27 years, since the Davis-Stirling Common Interest Development Act went into effect, governing condominium, cooperative and planned unit development communities in California, approximately 50 changes and amendments were made to this body of statutory law. In 2012, the Act was reorganized and re-codified by Assembly Bill 805, and effective January 1, 2014, Title 6 (commencing with Section 1350) of Part 4 of Division 2 of the Civil Code, was repealed and replaced by adding Part 5 (commencing with Section 4000) to Division 4 of the Civil Code. While the intent was not to create new legal rights or obligations, but rather to clarify, simplify and reorganize the existing law, some substantive changes found their way into the new statutes. Some of the changes: Civil Code Section One of the most significant changes in the new Act is how an association can give notice to its members. This new code section expands general notice by including first-class mail, electronic notice (with consent), inclusion in a billing statement or newsletter, and television broadcasts. Section 4049 of the Civil Code clears up any ambiguity regarding regularly scheduled board meetings and notice; these meetings may be notice via the general notice options as well. Caveat: If a member requests in writing to the association they wish general delivery of a notice, the association must provide the member notice via first class mail. conflict, the declaration language prevails. If the bylaws and the articles of incorporation or declaration conflict, the language in the articles or declaration prevail. If there is a conflict between the operating rules and the bylaws, articles of incorporation, or declaration - the language in the declaration, bylaws, articles of incorporation or declaration prevail. Civil Code Section 4235 is a new section that allows the Board of Directors to amend the governing documents without membership approval when the governing documents include a reference to a code section or provision repealed and continued in a new code section or provision. The Board of Directors can amend the governing documents by board resolution. If the change is in the declaration, the board resolution authorizing the correction must be recorded along with the restated declaration. Civil Code Section Under the old law, Associations were precluded from granting an owner exclusive use of any portion of the common area without first obtaining approval of 67% of the membership. The new code now includes three additional exceptions: (1) where the purpose is to accommodate a member with a disability, (2) where it is necessary to comply with governing law, (3) where the association wishes to assign a parking space, storage unit, or other amenity designated in the CCRs for assignment, but not assigned to a specific unit. Civil Code Section 4205 is especially noteworthy as many disputes have arisen regarding which documents/law govern when a conflict exists. This code section sets forth the hierarchy of governing documents when provisions conflict. When the governing documents conflict with the law, statutory and case law prevails. If the articles of incorporation and the declaration Continued on page North County Lawyer

11 THOMAS PENFIELD LEADING THE WAY Meet Thomas Penfield, a CaseyGerry partner for more than 25 years. From a role in the largest commercial bribery case in U.S. history to settling a recent class action suit against the City of Chula Vista, he has taken on a range of complex litigation, including product liability, civil litigation, personal injury, environmental cases and more. A fierce advocate for justice, he shares his considerable legal talents as an adjunct professor at USD School of Law and is past president of the Bar Association of North San Diego County. Call (800) to discuss referral or co-counsel arrangements. San Diego Office: North County Office: caseygerry.com S t r u c t u r e d S E T T L E M E N T S e r v i c e s Manuel R. Valdez, CSSC CA Lic # W e s t B r o a d w a y, S u i t e S a n D i e g o, C A Manny J. Valdez, CSSC CA Lic #0C76457 March

12 #crimpro By Eric P. Ganci, Esq. Can I be charged with a felony if I am picking up someone else s prescription medication? Yep. Hold on tight for this January 3, 2014 California Appellate decision in People v. Carboni (2014 DJDAR 103). The issue is this: if you are carrying some medication for someone else, and if that person has a prescription for that medication, can you use that as a defense if you re caught carrying that person s meds? The answer now is no, you cannot use that as a defense. The court states the issue as whether the prescription defense to possession or transportation of a controlled substance, available to a person for whom the prescription is written, extends also to others who possess or transport the controlled substance consistent with the prescription or for the benefit of the prescription holder. We are thus asked to construe the relevant statutory language of former sections subdivision (a), subdivision (a), and 11377, subdivision (a). But they weren t my drugs, and the person who owns them has a prescription! That apparently no longer works. It is not enough that the drugs in question were issued pursuant to a valid prescription, to be possessed or transported later by anyone with a noncriminal reason for doing so. The court says that making this defense argument would add the element of specific intent to the crime. To accept defendant s invitation to expand the scope of the prescription defense to persons other than those for whom the prescription is written so long as that possession or transportation was consistent with the prescription, rewrites the statutory requirements of the offenses at issue to add a specific intent to act in a way that is not consistent with the prescription even assuming those acts which are deemed consistent with the prescription could be determined in the first place. It would, moreover, add an element to the offense of possession or transportation to be proved beyond a reasonable doubt by the prosecution, that is, that the possession or transportation was not consistent with the prescription. Adopting the language of People v. Hurtado (1996) 47 Cal.App.4th 805, 814, we are not authorized to so revise the Legislature s description of a criminal offense. But this creates a huge problem and the court agrees: Of course this may create something of a legal conundrum, as restriction of the defense to the person for whom the prescription is written, in theory, makes criminal the possession and transportation of a prescribed controlled substance dispensed at a pharmacy to a person intending merely to take the controlled substance to a patient confined at home. But the court tosses the hot potato to the Legislature: [I] f this difficulty is at all significant in practical terms, it is for the Legislature, not the court, to remedy it. Can a prior Strike cancel out a Great Bodily Injury enhancement sentence?... Yes. The issue with the December 19, 2013 California Appellate Court decision People v. Johnson (2013 DJDAR 16554) was whether Defendant can be punished more because of a prior Strike and a great bodily injury enhancement to a DUI. One of the headlines in the opinion frames the issue the best: Dual use of the infliction of great bodily injury. Defendants argued that a prior serious felony conviction enhancement requires (among other things) that the current conviction be a serious felony. (Pen. Code, 667, subd. (a).) Defendant s current convictions for driving under the influence with injury (Veh. Code, 23153, subds. (a), (b)) are not serious felonies, standing alone. They are serious felonies in this case, but only because defendant personally inflict[ed] great bodily injury on a person, other than an accomplice.... (Pen. Code, , subd. (c)(8).) So the big answer here is... No, the court should not sentence Defendant for BOTH the prior Strike and the great bodily injury enhancement: Defendant would not have been subject to a prior serious felony enhancement if he had not inflicted great bodily injury in the current of- 12 North County Lawyer

13 fense. Indeed, under these circumstances, one could view the prior serious felony enhancement as a hybrid status/ conduct enhancement it applies due to the confluence of both a certain status (a prior serious felony conviction) and certain conduct (infliction of great bodily injury). The court hones in on the real issue: Here, the issue is not whether the trial court could strike the enhancements in the interests of justice under Penal Code section 1385; rather, it is whether it was prohibited from imposing them under Penal Code section 1170, subdivision (g). If you are convicted of a crime that allows you to serve your time in county jail but an enhancement requires prison, do you serve your time in county jail or prison? The quick answer is prison, and this January 15, 2014 California Appellate decision People v. Vega (2014 DJDAR 537) is one of first impression. The Court believes the Legislative intent was to put someone in prison if the enhancement calls for it and cannot be controlled by the base offense: By definition, an enhancement is `an additional term of imprisonment added to the base term. For that reason alone, an enhancement cannot be equated with an offense. Internal cited omitted. A penal enhancement is designed to increase or make greater the punishment that would otherwise be imposed. For infomation please contact GALENTE GANCI, APC 110 West C Street, Suite 712 San Diego, California T: March

14 Networking By Virginia Lopez, Esq. On January 30, 2014, the North County Chapter of Lawyers Club and the North County Bar Association co-hosted their first Champagne and Cupcake Reception at the home of Renee Galante. Featured speaker Patricia P. Hollenbeck, Esq., a partner at Duane Morris LLP, discussed how making meaningful connections at networking events is critical to building business. Ms. Hollenbeck discussed the importance of having a well prepared elevator pitch when asked the inevitable question: What do you do?. Ms. Hollenbeck shared practical advice and tips on how to make networking less awkward and make your connections more meaningful at social and networking events. Everyone enjoyed spectacular Hors d Oeuvres and desserts and sparkling champagne while socializing with colleagues and implementing their new networking skills. We hope to continue to provide future events so please stay tuned. The NCBA would like to thank North County Chapter Lawyers Club President, Danielle H. Moore and Renie Leakakos for making this event a success. A special thank you to Renee Galente and Eric Ganci for graciously hosting this event at their beautiful home in Vista. 14 North County Lawyer

15 March

16 California Community Association Update Continued from page 10 Civil Code Section 4600 no longer applies solely to a common area that the association owns or in which the association has an easement right. It now also applies to common area owned by the members as tenants in common. Civil Code Sec adds governing documents [defined in Civil Code Section 4150], an accounting prepared under subdivision (b) of section 5520 and an Enhanced Association record to the list of association records which members have a right to inspect. Enhanced Association Records includes invoices, receipts and canceled checks for payments made by the association, purchase orders approved by the association, credit card statements for credit cards issued in the name of the association, statements for services rendered, and reimbursement requests submitted to the association. Civil Code Sec requires the board to give at least 10 day s notice of a hearing and an opportunity to be heard before imposing reimbursement assessments for damage to the common area and/or facilities. A disciplinary proceeding brought against a member can be served personal or by individual delivery pursuant to Section Individual delivery under Section 4040 specifies acceptable methods for delivery of a notice to an individual member as opposed to general notice to every member. Civil Code Sec now forbids directors from voting on matters affecting their own, discipline, damage assessments, payment plans, foreclosure, remodel applications and exclusive use applications. Some notable recent case law decisions are: SB Liberty, LLC v. Isla Verde Association (2013) addresses who is entitled to attend a HOA Board meeting on an owner s behalf. The court held that that the right to attend and participate in board meetings does not extend to attorneys designated representatives, or any other party than the owner of the property. The court clarified who may attend board meetings where an entity, such as an LLC, is the owner of a property within the HOA. Friars Village HOA v. Hansing (2013) Friars Village dealt with a lawsuit brought by a HOA member challenging the validity of an HOA election rule that prevented any member from seeking a position on the board if that member was related by blood or marriage to any current board member or other candidate on the board. The bylaws had no qualifications for serving on the board except the nominee be a member, in good standing, of the association. When Charles Hansing nominated himself to run for the board, he was refused a listing on the ballot, as his wife was a current member of the nine member board. The court held the election rule was both reasonable and rationally related to the proper conduct and business affairs of the HOA and that the board had the authority to adopt the additional qualification for serving on the board. As an aside, this is the relationship rule. Diamond v. Casa Del Valle HOA (2013) illustrates how failure to comply with the statutory procedures and requirements applicable to assessment collection can lead to the invalidation of the HOA s assessment lien and an award of attorney s fees and costs to the delinquent homeowner. The issues in Diamond involved errors with the notice of assessment lien, the notice of the right to request ADR, the Board vote to foreclose on the lien, and the notice of the Board s decision to foreclose. Grossman v. Park Washington Association (2012). Attorney fees incurred by a HOA participating in Alternative Dispute Resolution ( ADR ) with a homeowner have traditionally been viewed as fees which cannot not be recovered from the homeowner if the HOA prevails. This is because ADR has not formally been classified as an action to enforce the governing documents within the meaning of Civil Code Sec However, after the Grossman ruling, a HOA may now recover its pre-litigation attorney s fees (i.e. attorney s fees spent in ADR) if the dispute escalates to a lawsuit in which the HOA prevails. An interesting case for an award of attorney fees for pre-litigation mediation! Note that the new Davis-Stirling Act does not apply to commercial or industrial common interest development. Legislature adopted a new and separate Com- 16 North County Lawyer

17 mercial and Industrial Common Interest Development Act, ( CID ), Sections of the Civil Code, which does not include all the sections required of the new Davis-Stirling Act for residential CIDs. It does, however, include the definitions of Reserve Accounts, Reserve Account Requirements, and the requirement to distribute an Annual Budget Report. Both will be required to comply with the Reserve disclosure requirements in the Association's Bylaws or CC&Rs. Deborah F. Bayus can be reached at or at 2014 New Lawyers Section It s Good For You! Want to build camaraderie with the local bar in a fun, casual setting and learn useful lawyering skills? Join North County Bar Association s newest section designed for the New Lawyers! Evening social events and lunch hour MCLE meetings are balanced to help you achieve your personal goals Mixer Thursday, April 10, 2014 at 5:30 p.m. at the Mother Earth Brewing Co. 206 Main Street, Vista Drop by; we look forward to meeting you! If you have questions, please feel free to contact either: Casey Ames: , John Donnoe: (858) Please bring a friend! (858) March

18 Youth In Court Mary V. J. Cataldo, Esq. Every spring the North County Bar Association and the Vista Branch of the San Diego Superior Court hosts over 500 4th, 5th, and 8th graders and over 500 high school students at its award-winning Youth in Court day. But, I recently learned that we were not the first to reach out to our youth about the Justice system. At the recent event where we said farewell to the founding father of the On My Honor and Youth in Court programs, Judge Richard G. Cline, and I was approached by a lively lady with a ready smile and sparkling eyes, who told us You weren t the first, you know! That lady was Betsy Draper, wife of retired Judge William Draper, Jr. Betsy told me that back in the 1980 s she and the other wives of North County lawyers would go out to the schools and put on courthouse tours for the students. I was intrigued and we exchanged contact information. By way of background, Betsy met Judge Draper in 1954 and married in She raised three children, Becky, Andrew, and Susan, and has six grandchildren and three Great-grand children. Judge Draper was appointed to the Municipal Court Bench in 1985 by Gov. George Deukmejian, and was later elevated to the Superior Court. Prior to being named to the Court, Judge Draper served as s a general courts-martial trial judge for the Marine Corps at Camp Pendleton. He retired as a lieutenant colonel in 1978, and began work for the District Attorney s office. Betsy was a homemaker and instructional aid in the Vista School District. I met Betsy for lunch at the Curbside Café in Vista. As we sat there in the warm summer sun, she shared with me how she and other members of the North San Diego County Lawyers Wives group would travel to classrooms around North County and bring the Courtroom to life for 5th grade students. The group consisted of the wives of local lawyers and North County Bar members, and all of them with familiar names: Anne Cline, Kathy Salter, Sylvia Williams, Ann Sauer, Donna Ring, Birgit Sarko, Sydney Street, Margaret Wininger, Marie Panther, Carolyn Roden, Sandi Humphries, Betty White, Evelyn Penfield, and Betsy. Before they were permitted in the classroom, all of the women had to undergo a training session held in downtown San Diego given by the Bar Auxiliary. They were given scripts and told how to proceed when they got to the classroom. As part of the script, they were to say We have taken a special training course, but are NOT lawyers. All of the women wore blue blazers to the classrooms and a patch and name tag. When they arrived at their designated classroom they would turn the class into a court. They would shuffle the chairs, and as they did so they would talk about what the courtroom looked like (with photos) and the roles of the various courtroom personnel. They would talk about what goes on in court, why we have the Court system, and they would explain the difference between civil and criminal law. Betsy s job in this process was to prepare the students for the presentation, a task she recalls was not always easy. The students were noisy and rowdy, and sometimes it was difficult to get everyone into position and get 18 North County Lawyer

19 NORTH COUNTY BAR ASSOCIATION PRESENTS 13TH ANNUAL YOUTH IN COURT DAY them to pay attention much like today for those of you who have visited classrooms as a speaker or with On My Honor. She found it rewarding, however, and was proud to have been a forerunner to our own On My Honor and Youth in Court programs. As we finished lunch and said our goodbyes, I was struck with how similar we are to these women who paved the way for us in North County. Although they were not lawyers, they were bright, articulate, and giving. They were organizers of their communities, and supporters of their husbands and what they did in the court system. We could learn a thing or two from these women, and I was glad to have had an opportunity to learn about the Lawyer s Wives and how they started what we now continue. Do You Need to Refer a Client, but don t know who to call Sponsored by the North County Bar Association Vista, CA Approximately 1100 students from North County schools will experience the justice system in action at the 13th Annual Youth in Court Day, March 14, 2014 from 9:00 a.m. to 3:00 p.m. at the North County Courthouse in Vista. The event, organized by the North County Bar Association, North County Lawyer Referral Service, and Vista Superior Court judges and staff, includes mini mock trials that take place in courtrooms in front of superior court judges. Volunteers from the North County Bar Association will serve as presenters, guides, witnesses and mock trial coaches for the students who will participate in the trial and observe the proceedings. Students will have the opportunity to go into actual courtrooms and talk with North County judges and courtroom staff. According to Debra Leffler Streeter, President of the North County Bar Association, about 600 middle and high school students will attend in the morning where they will directly participate in mock trials, working with experienced attorneys and superior court judges. In the afternoon about 500 high school students will hear many presentations. The main event will be a presentation on the dangers of prescription drug use. In addition, the students will attend educational workshops including Social Network Nightmare, We Represent the Accused Murderers, Rapists and Child Molesters, and We re Proud of What We Do, Stories from Drug Court, Graffiti: Truth and Consequences and CSI: Forensic Methods. These workshops are presented by volunteer judges, attorneys, and law enforcement officers. The North County Bar has been sponsoring this nationally acclaimed program for 13 years. The North County Bar Association (NCBA) promotes professional excellence, camaraderie, philanthropy, and community outreach among its members. Volunteers are needed for the upcoming March 14th Youth in Court Program from 9:00 a.m. to 3:00 p..m.. If you would like to volunteer, please call Mary Silva, Executive Director at (760) or send an to March

20 DUTY TO RELEASE FILES UPON CLIENT DISCHARGE Continued from page 6 member's expense in any subsequent legal proceeding. Whenever a lawyer is discharged by the client before the matter is concluded, the lawyer should keep a copy of the file to use in the event of fee collection, fee disputes, legal malpractice claims, disciplinary complaint or other disputes wherein the lawyer needs the documents in the file for defensive or fee collection matters. Opn , fn. 3; Bar Ass'n of San Francisco Form.Opn ) 4. Mental health records: A lawyer must release a former client's mental health records as instructed by the client even when the lawyer doubts the client's emotional stability and the client's health care professionals have warned that releasing the records might harm the client or others. (Los Angeles Bar Ass'n Form.Opn. 509 (2002).) As a matter of risk management based upon the foregoing, Peri should try to get the file to Able within ten days of request, if possible, but no more than thirty days. What papers and property is Peri required to turn over to Able? Information comprising the client file is not necessarily limited to the contents of a physical file, but depends instead on the nature and location of the information (e.g., s and electronically-stored documents or discovery in a computer database or on the Web) and Peri s duty to avoid foreseeable prejudice to Velma s interests under CRPC 3-700(A)(2). Here is a list of what Peri should release as Velma s file 1. Pleadings and papers filed with court in Velma s case. (San Diego Bar Ass'n Form.Opn ; Cal. State Bar Form.Opn , fn. 3; Bar Ass'n of San Francisco Form.Opn ) 2. All correspondence to and from attorney; to and from the client, opposing counsel, witnesses or third parties. Correspondence includes letters, faxes and s, recorded texts and other electronically stored communications. (San Diego Bar Ass'n Form.Opn ; Bar Ass'n of San Francisco Form.Opns & ; Cal. State Bar Form.Opn , fn. 3; Cal. State Bar Fml. Op ) 3. Investigation and research reports (legal and factual) prepared at the attorney's direction. (San Diego Bar Ass'n Form.Opn ; Cal. State Bar Form. 5. Attorney work product? While Peri s work product (writings reflecting the her opinions, research or theories) is normally not discoverable under any circumstances (see CCP (a)), she may have an ethical obligation to disclose such information to Velma when transferring the file if the information is necessary to avoid reasonably foreseeable prejudice to the client's rights. (See San Diego Bar Ass'n Form. Opn (attorney may not withhold work product reasonably necessary to client's representation); Bar Ass'n of San Francisco Form.Opns & ; Los Angeles Bar Ass'n Form.Opns. 330 (1972) (work product for which client can be billed belongs to client) & 405 (1982) ( virtually everything in client file is client property); compare San Diego Bar Ass'n Form.Opn although client not entitled to attorney's absolute work product, such disclosure is recommended as a matter of professional ethics and courtesy.) However, it is unclear whether an attorney's disclosure obligation upon withdrawal includes uncommunicated work product. (See Rose v. State Bar (1989) 49 Cal.3d 646, 655; Cal. State Bar Form.Opn ) As a matter of risk management Peri should consider releasing any uncommunicated work product (such as her notes of client and third party interviews) if it contains material information the client or successor counsel needs to pursue the client's matter or protect the client's interests. Continued on page North County Lawyer

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