Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association October 2010 Issue 457
FINANCIAL EXPERTISE IN YOUR CORNER. These days, help from a one-on-one relationship with an advocate who knows you and knows where you want to go is more important than ever. A Merrill Lynch Financial Advisor, now with access to the resources of Bank of America, can help you plan, imagine, diversify, rebalance and believe. The Micheel - Gamberdella Group Bruce Micheel, CFP Marc Gamberdella John Spruill, CFP (805) 963-6310 http://fa.ml.com/micheel_gamberdella Merrill Lynch Santa Barbara, CA 93101 Investing involves risk. Diversification and rebalancing do not assure a profit or protect against loss in declining markets. Merrill Lynch Wealth Management makes available products and services offered by Merrill Lynch, Pierce, Fenner & Smith Incorporated (MLPF&S) and other subsidiaries of Bank of America Corporation. MLPF&S is a registered broker-dealer, member SIPC and a wholly owned subsidiary of Bank of America Corporation. Investment products: Are Not FDIC Insured Are Not Bank Guaranteed May Lose Value 2010 Bank of America Corporation. All rights reserved. 2 Santa Barbara Lawyer
Larry L. Hines Mediation Services Where Experience and Knowledge Count Limited to complex family law, probate/trust, business and employment law Serving Los Angeles, Ventura, Santa Barbara & San Luis Obispo Counties 40 years of civil and appellate experience Practice devoted primarily to complex family law, probate/trust, business and employment law Participated in hundreds of mediation and settlement conferences Lead trial lawyer in over 100 jury and court trials Served as mediator, arbitrator and temporary judge Attended the Straus Institute for Dispute Resolution, Pepperdine School of Law Larry L. Hines, Of Counsel Nordman Cormany Hair & Compton LLP, 1000 Town Center Drive, Sixth Floor, Oxnard, CA 93036 Call Marina at (805) 988-8336 for appointments See website for details and Curriculum Vitae at www.lhinesmediation.com Named a 2010 Southern California Superlawyer! www.santabarbaraappeals.com hfox@foxappeals.com October 2010 3
Lynn E. Goebel President Attorney At Law 15 West Carrillo Street, Suite 250 Santa Barbara, CA 93101 T: 879-7513 F: 879-4006 Mack Staton President Elect Bench and Bar Conference (2010) Events Committee Mullen & Henzell LLP 112 E. Victoria Street Santa Barbara, CA, 93101 T: 966-1501 F: 966-9204 Catherine Swysen Secretary Sanger & Swysen 125 E. De La Guerra Street, Ste 102 Santa Barbara, CA 93101 T: 962-4887 F: 963-7311 Donna Lewis Chief Financial Officer Attorney at Law 789 North Ontare Road Santa Barbara, CA 93105 T: 682-4090 Melissa Fassett Past President Special Projects Price, Postel & Parma LLP 200 E. Carrillo Street, Suite 400 Santa Barbara, CA 93101 T: 962-0011 F: 965-3978 Santa Barbara County Bar Association www.sblaw.org 2010 Officers and Directors Scott Ballenger Campbell Rogers, Sheffield & Campbell 427 E. Carrillo St. Santa Barbara, CA 93121-2257 T: 963-9721 F: 966-3715 Naomi Dewey MCLE Chair Hardin & Coffin, LLP 1531 Chapala Street, Suite 1 Santa Barbara, CA 93101 T: 963-3301 F: 963-7372 Luis Esparza Events Committee Esparza Law Group, PC 1129 State Street, Suite 13 Santa Barbara, CA 93101 T: 564-1018 F: 564-1437 Gabriela Ferreira SBWL Representative Attorney at Law 427 East Carrillo Street, 1st Fl. Santa Barbara, CA 93101 T: 845-5058 F:845-5348 Herb Fox Liaison/Bench and Bar Law Office of Herb Fox 15 West Carrillo Street, Suite 211, SB 93101 T: 899-4777, F: 899-2121 Saji Gunawardane Special Projects Law In Motion, PC 924 Anacapa Street, Suite 2-J Santa Barbara, CA 93101 T: 845-4000 F: 845-4867 Mission Statement Santa Barbara County Bar Association The mission of the Santa Barbara County Bar Association is to preserve the integrity of the legal profession and respect for the law, to advance the professional growth and education of its members, to encourage civility and collegiality among its members, to promote equal access to justice and protect the independence of the legal profession and the judiciary. Jennifer Kruse Hanrahan Liaison, Legal/Community Relations Attorney at Law 657 Del Parque Drive, Suite E Santa Barbara, CA 93103 T: 636-5566 F: 966-6407 Cristi Michelon Events Committee Eaton, Jones & Michelon 1032 Santa Barbara Street Santa Barbara, CA 93101 T: 963-2014 F: 966-2120 John J. Thyne III Law Day/Law Week Bench and Bar The Law Offices of John Thyne 2000 State Street Santa Barbara, CA 93105 T: 963-9958 F: 963-3814 William Duval, Jr. Law Day/Law Week Attorney at Law 1114 State Street, Suite 240 Santa Barbara, CA 93101 T: 963-9641 F: 963-4071 Lida Sideris Executive Director SBCBA Office 15 W. Carrillo Street, Suite 106 Santa Barbara, CA 93101 T: 569-5511 F: 569-2888 sblawmag@verizon.net Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2010 Santa Barbara County Bar Association CONTRIBUTING WRITERS Jeff Chambliss James F. Cote Stephen Foley Herb Fox Jennifer K. Hanrahan Robert Sanger EDITOR PRO TEM Catherine J. Swysen MOTIONS EDITOR Justin Greene VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PHOTO EDITOR Michael Lyons DESIGN Baushke Graphic Arts PRINT PRODUCTION Wilson Printing Submit all EDITORIAL matter to santabarbaralawyer@yahoo.com with submission in the email subject line. Submit all MOTIONS matter to Justin Greene at Justin@greenelawsb.com. Submit all advertising to SBCBA, 15 W. Carrillo Street, Suite 106, Santa Barbara, CA 93101 phone 569-5511, fax 569-2888 Classifieds can be emailed to: sblawmag@verizon.net 4 Santa Barbara Lawyer
Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association October 2010 Issue 457 Articles 7 Meet Patricia Kelly Santa Barbara County s Newest Superior Court Judge, By Stephen Foley 8 Public Defender Greg Paraskou Announces Retirement, By Jeff Chambliss 12 What Happens to Your Law Practice When You (Gulp) Become Incapacitated or Die? By James F. Cote Sections 19 Motions 26 Verdicts & Decisions 29 Section Notices 34 Calendar 14 Civil Lit is Hot, Appeals are Not Yet?, By Herb Fox 16 The Dodd-Frank Reform Act and the Criminal Law, By Robert Sanger 25 Report of SBCBA Liaison to Affiliate and Legal Community Organizations, By Jennifer K. Hanrahan SAVE THE DATES SBCBA Annual Dinner, November 5, 2010 Greek Orthodox Center Bench and Bar Conference, January 22, 2011 Santa Barbara Mission October 2010 5
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Legal News Meet Patricia Kelly Santa Barbara County s Newest Superior Court Judge By Stephen Foley miss the excruciating hot nights and the annual Date Festival, said a smiling Patricia Kelly a few Ireally days before she concluded her sixteen year career as a prosecutor on August 20, 2010. Her years of fighting crime were about to end, because on August 11, 2010, the Governor appointed her as Santa Barbara County s newest Superior Court Judge. With a mix of nostalgia and loathing, she recalled cutting her teeth as a young Deputy District Attorney in Indio, California [hence the reference to Indio s famous National Date Festival]. I always hated the heat, she said, shaking her head in disbelief. I wonder sometimes how I survived in Indio for 11 years! she joked. Truth be told, Judge Kelly loved the work of a Riverside County prosecutor in the Eastern Division. She started in Indio in August of 1994 as a certified law clerk, passed the bar in November and was immediately sworn in as a Deputy District Attorney. She handled misdemeanors at first and gradually worked her way through the ranks of drug court, major narcotics, felony trials, and then she headed up the gang unit. Along with another prosecutor, she handled a death penalty case. The defendant was a white supremacist who robbed and murdered his victim after lying-in-wait for him at his home. The defendant was convicted and sentenced to death. In 2005, Judge Kelly fled the heat for the cooler climate of Santa Maria and joined the Santa Barbara County District Attorney s Office. She started out in Lompoc, and then ended her career as a prosecutor in the Gangs and Major Narcotics Unit. At the District Attorney s office, she earned a reputation as a hard worker with a sharp legal mind. Her colleagues could always count on her for accurate legal research and briefs. Her trial preparation was so thorough that once, two defendants, Kevin Trevino and Alejandro Perez, actually pled guilty to first degree murder prior to jury selection. Her trial experience in Santa Barbara started and finished memorably. Her first trial in Santa Barbara County involved the charge of a DUI and she was up against an extremely tough opponent. The defendant made things interesting when he showed up to court in a military uniform. The always calm and professional Kelly politely asked the trial judge, Judge James Herman, to correct the defendant s inappropriate choice of attire. As Kelly later found out, the defendant was AWOL from his unit and not in any position to be representing our armed forces during his trial. Judge Herman corrected the wardrobe malfunction, and Kelly guided the jury to a much-deserved guilty verdict. Her last trial as a prosecutor was much more noteworthy. Judge Kelly was appointed to the bench in the middle of a murder trial. In People v. Duran, the defendant was charged with killing a black male in retaliation for losing a fight earlier in the night at a local bar. The defendant s co-conspirator had been beaten at the bar by a black male, and as a Tanglewood gang member, he was looking to reclaim his reputation when he came upon the victim and shot him. Judge Kelly had already convicted Mr. Duran s co-conspirator, Gilbert Garcia, back in February of 2010. She put aside the distraction of her appointment, presented a compelling case to the jury, and, a few hours after finishing her closing argument, she was sworn-in as a judge by Presiding Judge Arthur Garcia. The next Patricia Kelly day, the jury convicted Mr. Duran of second degree murder. That is a sure example of going out on a high note. Ms. Kelly fills the vacancy created by the conversion of Steven Belasco s Court Commissioner position back on September 4, 2009. For her first several months, she will learn on-the-job by presiding over traffic court, unlawful detainers, and small claims court. Although no final decision has been made, most expect Ms. Kelly to eventually Continued on page 30 October 2010 7
Legal News Public Defender Greg Paraskou Announces Retirement By Jeff Chambliss After thirty-eight years of defending the rights of indigent persons accused of a crime, Santa Barbara Public Defender Gregory Constantine Paraskou marked his 65 th birthday on August 27, 2010 by announcing his retirement. Greg is only the third Public Defender in the history of Santa Barbara County, and the first, as he points out, to leave on his own terms. Greg was appointed Assistant Public Defender in September 2000, and became the Public Defender in 2006. Before coming to Santa Barbara, Greg worked in the Santa Clara County Public Defender s Office for 28 years, trying capital cases and serious felonies. As Public Defender, Greg will be remembered as a tireless advocate who represented his clients with integrity and zeal, a dedicated public servant who sought to insure his department met its obligations to its clients and the county, and a genuinely caring person. Greg grew up in old San Francisco in the Potrero Hill neighborhood. He attended Lowell High School, played middle linebacker on the football team, and in a game with their rival, Galileo High School, he tackled a little known running back named O.J. Simpson. As a child, he wanted to be a criminal defense attorney: a desire his mother attributed to his reading Perry Mason books but which Greg says stems from his belief that basic fairness required equal justice under the law. He went on to attend San Francisco State University, then Hastings College of Law. It was at Hastings that he formed his true love for defending capital cases because they are the most challenging cases facing a criminal defense attorney. After graduating from Hastings in 1971, Greg was hired by the Santa Clara County Public Defender. There, he shared his first office with Rose Bird, who later became Chief Justice of the California Supreme Court. His association with Rose Bird had a profound and inspiring effect on Greg to this day he cites her ethics, professionalism and preparedness as standards he has tried to emulate. Greg spent most of his twenty-eight years in the Santa Clara County Public Defender s Office working in the Special Trials Unit, trying approximately 25-30 homicides and three capital cases. Amazingly, and as a testament to his skills as an advocate, he tried five first degree murder trials with his client out of custody! His most difficult case was probably the case of People v. Richard Wade Farley, a case that has been described as one of California s most vicious workplace murders. 1 In February 1988, infatuated with a coworker and upset because she would not respond to his interest, Mr. Farley culminated his four year infatuation by going to his former workplace and killing seven coworkers. In the face of overwhelming evidence, Mr. Farley was convicted of these murders, five counts of attempted murder, and sentenced to death in 1992. Not all of Greg s cases ended like this. On one occasion, he twice tried a first degree homicide that resulted in a hung jury before ultimately persuading the judge to dismiss the case because it was unlikely that any jury would convict the defendant. As the Assistant Public Defender for Santa Barbara County, Greg continued to go to court and try cases until his appointment as the Public Defender by the Board of Supervisors in 2006. Santa Barbara County District Attorney Joyce Dudley, who has the unique perspective of both opposing Greg in court and working with him as a department head, said this about Greg: Several years ago I had the pleasure and honor of trying an arduous murder case with Greg. In the short time I have Greg Paraskou worked with him in our respective roles as department heads, I have come to view him as a mentor. In the years ahead I will miss his intelligence, passion, and wit. As Public Defender, Greg was able to persuade the Board of Supervisors of the need for a vigorous and adequately funded Office to provide effective representation of all clients. Mr. Michael Brown, Chief Executive Officer of Santa Barbara County, described Greg s efforts on behalf of the Public Defender s office: Greg is a solid low key administrator who always Continued on page 11 8 Santa Barbara Lawyer
THE SANTA BARBARA COUNTY BAR ASSOCIATION cordially invites members of the Bench and Bar to enjoy an informal reception and dinner Annual Dinner Meeting Friday, November 5, 2010 Greek Orthodox Center 1205 San Antonio Creek Road, Santa Barbara Join us for Mediterranean cuisine at a stunning venue perched on a ridge with sweeping views of the city, coast and Channel Islands. With a Beverage Committee of Bill Duval and Melissa Fassett, your choices are sure to be... absorbing. 5:30pm Reception Mediterranean style appetizers Opt to have your photo taken for the Attorney Directory 6:30pm Dinner Introduction of New Associates* The typical introductions of newly minted attorneys will be replaced by introductions of attorneys new to your firm or new solo practitioners. Take advantage of this dedicated portion of the program to ensure the rapt attention of the assembled multitude if and only if you as the introducing member provides name, firm, areas of practice AND a humorous fact about the subject attorney. Guest Speaker Darrel Parker North County Assistant Court Executive Officer of the Superior Court Courthouse Security Special Awards and Vote on Slates of 2011 Board Members & Conference Delegates $75.00 Per Person (After October 15, 2010 - $85.00 per person) $55.00 New Associates* (After October 15, 2010 - $65.00 per new associate) Name Vegetarian? Applicable price from above To reserve via mail, $.00 please complete form and $.00 send with your check payable to: Santa Barbara $.00 County Bar Association To reserve and pay by credit card, or if you have at 15 West Carrillo St., questions, call SBCBA at (805)569-5511 Total: Suite 106, Santa Barbara, CA 93101 * Attorneys who have been admitted for one year or less October 2010 9
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Legal News Ch a m b l is s, continued from page 8 honors the ethics of the public defender profession and the interest of justice. He displays his leadership by taking county wide assignments outside of his job and serves as a positive role model for everyone. The County organization will miss his focused and cordial presence. We are fortunate that he will continue to live in the Santa Ynez Valley and contribute as an informed and articulate citizen. Greg has worked to diversify the Public Defender s Office and has overseen the smooth transition from the old guard to an office where he has hired almost half the attorneys currently working in the office! He is justifiably proud of creating one office, not a Santa Barbara Office and Santa Maria Office but a unified team working together to represent all residents of the county. He helped accomplish this by spending at least one day a week in Santa Maria. Greg is also proud of the working relationships he has established with other stakeholders in the Criminal Justice System. Ms. Patricia Stewart, Chief Probation Officer for Santa Barbara County, added: It has been an honor to work with Greg and to serve with him as a County Department Head and colleague in the local criminal justice system. He is the quintessential advocate for the clients served by the Public Defender s Office, and he has a laser beam focus on justice for all. We share a mutual respect for the clients we are entrusted to serve, and although we do not always agree on how it will be achieved, we recognize the opportunity presented by their abundant potential maybe that s why we get along so well!! One of his goals during his four year tenure as Public Defender was to secure funding for a badly needed remodel of the Public Defender s Office space in the Courthouse adjacent to the Clock Tower. Greg is quick to point out that the Fire Marshall has cleared him on any wrongdoing in the January Courthouse fire that closed a portion of the Office and provided the final impetus for the remodel. The remodeled office will better serve clients by providing handicap access to all floors and will also provide the staff with a better workplace. The remodel will be done by a local contractor at a reasonable cost. (During the remodel, the Public Defender s Office has temporarily relocated to 1 E. Anapamu Street, at the corner of Anapamu and State Streets, above Santa Barbara Outfitters). During his career, Greg has also devoted a lot of time to mentoring and teaching young attorneys the lessons he has learned in his career. He served for ten years on the Board of Governors of the California Attorneys for Criminal Justice and for three years was Chair for the Planning Committee for Monterey Capital Case Seminar held every year on President s Day weekend. While Chair of the Planning Committee, he was successful in having Sister Helen Prejean come to the Seminar to give the keynote address. Finally, for nineteen years he has taught at the Bryan Schechmeister Death Penalty College held annually at Santa Clara Law School. His teaching at the Shechmeister College is especially meaningful to Greg because Bryan Shechmeister was one of his colleagues in the Special Trials Unit in the Santa Clara Public Defender s Office. Bryan, who died while still quite young, was one of the first to recognize the importance of developing a client s life history, especially their childhood, as part of an effective mitigation strategy. When looking at Greg s thirty-eight years of dedicated public service two things stand out: First, his dedication to equal justice for all especially for those clients charged with the most serious of crimes where the prosecution is seeking the death penalty and second, his success in obtaining resources for the Santa Barbara County Public Defender s Office and literally building a new office. Santa Barbara County Supervisor, Janet Wolf, perhaps put it best when she said: I have had the pleasure of working with Greg since I was first elected Supervisor in 2006. I have consistently been impressed with his professionalism, leadership, compassion and integrity. His retirement, while welldeserved, will be a loss to the County. His colleagues in the Public Defender s office will similarly miss his experience, wisdom, energy and camaraderie. We wish him the best on his well earned retirement. En d n o t e s 1 People v. Farley (2009 )46 Cal.4 th 1053 www.workplaceviolence911.com/docs/20010307-.02.htm Jeff Chambliss is a Senior Deputy Public Defender in the Santa Barbara office of the Santa Barbara County Public Defender. On September 21, 2010, the Santa Barbara County Board of Supervisors unanimously voted to appoint Assistant Public Defender Raimundo Montes de Oca Interim Public Defender pending the recruitment of a new Public Defender. October 2010 11
Legal News What Happens to Your Law Practice When You (Gulp) Become Incapacitated or Die? By James F. Cote We lawyers are always so busy taking care of our clients problems that we often can t find the time to make our own plans. Investment plans, business plans, vacation plans, estate plans, fire escape plans - the list goes on and on and on. How many of us have a plan in place for what would happen to our active legal practice if we unexpectedly became incapacitated or died? Probably not many. The whole idea is so uncomfortable to think about that our reaction is one of convenient avoidance. The need for a plan is even more important for sole practitioners, because we do not have partners already in place to cover for us. I procrastinated on this topic as long as anyone, even though I should know better: for more than a decade my practice has focused on estate planning, probate, and trust administration. But when my sister (a retired estate planning attorney and accountant) gently prodded me on the subject recently, I had to admit: I had no plans. That has now changed, and it is much easier to do than you might think. The purpose of this article is to briefly discuss the applicable law and to urge you to promptly draft and sign two short documents that can protect you, your family, your clients and your practice from the emergency of your unexpected absence from practice. Two Codes at Play Both the Business & Professions Code and the Probate Code have provisions that will cover the management of your law practice if you become incapacitated or die. The B&P Code focuses primarily on protecting your clients, while the Probate Code provides important provisions to protect your law practice as a valuable asset. Closing Down Under the B&P Code Under B&P Code 6180 and 6190, the State Bar or the Superior Court can assume control over your law practice by selecting and appointing a Practice Administrator. The job of a Practice Administrator appointed under the B&P Code is to protect your clients - by ending your client relationships and closing down your practice. To put salt in the wound, if you are found to be incapacitated, your license will automatically be placed on inactive status, and you will have to seek reinstatement before you could return to practice, if there is any practice left. Continuance Under the Probate Code The powers granted a Practice Administrator under PC 2468 and 9764 are greater than those allowed under the B&P Code, because here, the goal is not to just close down your practice, but to continue and preserve it, so you can return to it once you are able, or so your estate can properly market it. BP 6185(a)(7). Your conservator (PC 2468) or executor (PC 9764) can petition for the appointment of a Practice Administrator. If the authority granted your Agent in your Advance Health Care Directive specifically references the law practice, a conservator may not need to be appointed. (See PC 2468(a) which allows any other person interested in the estate to seek the appointment of a Practice Administrator.) The advantages go on. The court shall appoint the lawyer you have nominated (see sample Nomination of Practice Administrator, next page) unless it would be contrary to the best interest of the estate or would create a conflict of interest. PC 2468(f) and PC 9764(f). If immediate action is necessary, the court can waive notice for the appointment. PC 2468(b) and 9764(b). The powers granted under PC 6185 can be greater than those allowed under BP Code 6180 and 6190. The Malpractice Issue I should add that failing to adequately plan for protecting our clients interests in the event of your incapacity or death could be malpractice, because we each owe continuing duties of loyalty, confidentiality and service to our clients. These duties follow us unrelentingly into our sickbeds and then even into our graves! Friendly Advice As my sister told me: If I unexpectedly became incapacitated or died, it would be much better for everyone involved if my law practice was managed under the Probate Code, by a Practice Administrator I carefully chose in advance. So, I am telling you: Make an emergency plan for your law practice by signing both an Advanced Health Care Directive and a Nomination of Practice Administrator. Do it now, before your sister brings it up. 12 Santa Barbara Lawyer
Legal News James F. Cote has been a lawyer in Santa Barbara for 31 years. His practice focuses on estate planning, probate and trust administration. His sister, Christine Gress, now in Santa Barbara and working with her brother part-time, is a retired estate planning attorney with an LLM in tax, and an accountant. NOMINATION OF LAW PRACTICE ADMINISTRATOR I, Prepared Lawyer, am licensed to practice law in the State of California and currently practice at Law Office of Prepared Lawyer, located in Santa Barbara, California ( my law practice ). In the event of my disability or death, I hereby nominate and, in the order named, to serve as the Practice Administrator of my law practice, and to take control of my law practice during the period of my disability and/or for the course of the administration of my estate. Probate Code Sections 2468 and 9764. The authority granted hereunder shall be sufficiently comprehensive to allow the Practice Administrator to take control of my files and the assets of my law practice and to speak for me in matters regarding my law practice, including petitioning the Santa Barbara Superior Court for appointment as Practice Administrator. Probate Code Section 2468(a). In the event of my disability, one of the purposes of such an appointment will be to avoid the need for the appointment of a conservator. I hereby ask the Santa Barbara Superior Court to appoint the Practice Administrators nominated above, unless to do so would adversely impact my clients or other persons interested in my practice or my estate. Probate Code Sections 2468(f) and 9764(f). I also ask that the Practice Administrators be granted all of the powers provided in the Business & Professions Code Section 6185. Dated: Prepared Lawyer, Attorney at Law [Add Notarial Acknowledgment] The Santa Barbara County Bar Association invites its members to nominate candidates for the following awards to be made at its Annual Meeting at the Greek Orthodox Center in November 2010: Pro Bono During the calendar year, an individual who donated at least 50 hours of direct legal services to low income persons without expectation of renumeration. John T. Rickard Judicial Service Award An individual or firm who made outstanding contributions to the judiciary and/or the local court system. Richard Abbe Humanitarian Award An outstanding attorney or judge whose life, leadership and conduct exemplifies humanitarian principles. Frank Crandall Community Service Award (established 1995) Law firm facilitating pro bono services to community non-profit organizations(s). Factors to consider: services benefiting low-income persons; leadership in community projects; nature and quality of work and hours per attorney; percent of firm attorneys involved in pro bono work; existence of a policy encouraging pro bono activity. Please submit any nominations by October 15 to: Lynn E. Goebel: lgoebel@lgfamilylaw.com, (805) 879-7513, or Lida Sideris: sblawmag@verizon.net, (805) 569-5511 October 2010 13