Contra Costa
LAWYER Volume 34, Number 2 | March 2021
The Family Law Issue
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Contra Costa 2021 BOARD OF DIRECTORS Dorian Peters President Ericka McKenna President-Elect David Erb Secretary David Pearson Treasurer Oliver Greenwood Past President Dean Christopherson Patanisha Davis Pierson Jonathan Lee Terry Leoni Cary McReynolds Craig Nevin
Michael Pierson David Ratner Summer Selleck Marta Vanegas Andrew Verriere Qiana Washington
CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org
LAWYER Volume 34, Number 2 | March 2021
The official publication of the
FEATURES INSIDE: Happy Families, by Katy Gronowski, Guest Editor . . . . . . 5 Mediation: Pros & Cons, by Joann Babiak . . . . . . . . . . . . . . . . . . . . 6 The Importance of Disclosure and Financial Consistency in Divorce and Tax, by Charlie Burak, CPA . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Barbara Arsedo Carole Lucido
LRIS & Moderate Means Director Communications Director
Jennifer Comages Anne K. Wolf
Membership Director Education & Events Director
Emily Day
Systems and Operations Director
CONTRA COSTA LAWYER CO-EDITORS EDITORIAL BOARD Marcus Brown Alice Cheng
Who Has Authority to Act if You, Your Spouse or Domestic Partner becomes Incapacitated by Illness or Injury? by Carolyn Cain . . . . . 12 Do Child Support Orders Survive the Death of the Payor? by Virginia Ekelund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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The Doctrine of Implied What? From the Memorandum of Intended Decision to the Statement of Decision and Appeal, by John Schreiber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Love, Undone, by Katy Gronowski. . . . . . . . . . . . . . . . . . . . . . . . . 23
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The Contra Costa Lawyer (ISSN 1063-4444) is published six times in 2021 by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA and additional mailing offices. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.
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Welcome to the Board
Dean Christopherson
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Andrew Verriere Thank you to these members who joined the CCCBA Board of Directors to serve a one-year term in 2021. CCCBA appreciates the many dedicated volunteers who serve on boards, committees and in other leadership roles. For information on how you can get involved, please see the CCCBA website, www.cccba.org/cccba-committees/
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“
INSIDE
Happy Families
by Katy Gronowski, Guest Editor
Tolstoy’s “Anna Karenina” opens with one of the great lines in literature: “Happy families are all alike; every unhappy family is unhappy in its own way”. Anyone who has braved the stormy waters of family law has lived the truth of that wise pronouncement. No two cases are alike. The particular misery of one family is unique to that family. And, indeed, there is a turbid ebb and flow to that misery.
Charlie Burak, CPA, a forensic family law accountant from Walnut Creek, discusses the importance of disclosure and financial consistency in divorce and tax.
But no great story should begin and end with human misery as its theme. Family law is complex, nuanced, and encompasses a multitude of disciplines, one as fascinating as the other. The goal of this issue is to explore the many facets of family law practice. I am fortunate that such talented and varied practitioners graciously agreed to write about their areas of respective expertise or a topic of particular interest. I am also grateful for the calm and consistent guidance of Carole Lucido, Communications Director of the CCCBA.
Virginia Ekelund, Esq., a certified family law specialist from Danville, addresses whether a child support order survives the death of the payor spouse.
Joann Babiak, Esq., family law attorney and mediator from Marin County, writes about the pros and cons of mediation in the context of family law practice in the current climate.
Carolyn Cain, Esq., a probate litigator from Walnut Creek analyses the issue of who has the authority to act if a spouse or domestic partner becomes incapacitated by illness or injury.
Katy Gronowski is a certified family law specialist, State Bar Board of Legal Specialization, and a certified specialist in Family Law Trial Advocacy, National Board of Trial Advocacy. She has taught law school courses in community property and family law. She graduated with honors from UC Berkeley and attended Santa Clara University School of Law. Katy has been selected to Super Lawyers and has been named one of the top women lawyers in Northern California. She has served on the boards of CCCBA’s Women’s Section (past president), the Family Law Section and the Barristers Section.
John Schreiber, Esq., a certified appellate specialist from Solano County, looks at the aptly titled “Doctrine of implied what?” which is a current concern facing family law practitioners. And, finally, because a little levity can go a long way not only in family law, but also in the world at large, I close with an article titled “Love, Undone” on a recent appellate decision regarding annulment of marriage. Happy reading!
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MEDIATION: Pros & Cons by Joann Babiak California rises like the mythical Phoenix from the ashes of summer’s blazing wildfires only to face even bigger challenges. The rising Covid death toll across our nine Bay Area counties totaled 3,061 on January 11, 2021, at least triple the 1,000 lives lost in this area by late August 2020. Data from various county health departments reveal steeply increasing death tolls throughout the nine San Francisco Bay Area counties. The trifecta of destruction would be incomplete without the arrival of climate challenges – an epic heatwave over the Labor Day holiday weekend brought sweltering triple digit temperatures. Bay Area cities are now preparing for the double whammy of rising sea levels and diminishing Sierra snow-pack. Drought and floods rolled into the time of viral pandemic! But, we are not through with disasters. Now, just as temperatures have dipped precipitously, the impeachment trial of the former president heats up feverishly. The social fabric of America is stretched thin; the population is experiencing far reaching changes. Many are increasingly aware of the call to action of the Black Lives Matter movement, others are impacted by job loss, food insecurity and resulting changes in life circumstances. These are indeed interesting times. 6
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“Justice, justice shall you pursue” — Deuteronomy 16:20 Against this backdrop of challenges and change, attorneys, clients and self-represented litigants struggle to access family court, many of which, including Contra Costa County Superior Court, are operating with reduced hours, reduced staff, and Zoom hearings. Courts remain open; but under current circumstances, the pace of justice slows. Despite the onslaught of challenges, attorneys remain ethically bound to competently represent their clients’ interests and to abide by the client’s decisions in determining the objectives of a representation as well as the means by which these objectives are to be pursued. In these times of transition, especially in the context of family law, where domestic violence and familial strife have reached new peaks, it is incumbent on us as attorneys to consider a path that does not involve a trip to the courthouse: mediation. Parties call for expedient dispute resolution, economic efficiency and finality, even as clogged courtrooms contribute to significant delays. Mediation in these turbulent times may allow exactly the pain relief disputants seek.
“The greatest victory is that which requires no battle.” — Sun Tzu, The Art of War Unlike litigation, mediation is nonadversarial by design. Family court, by contrast, is all too often a hotbed of strife and warfare. California’s Code of Civil Procedure Section 1775.1 and Evidence Code Section 1115 each define mediation as “. . . a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.” Simply the act
of agreeing to mediate signals the parties wish to engage in a process that can diminish conflict, foster cooperative problem solving, and rebuild fractured relationships. Mediation is a voluntary, out-ofcourt process that is private and confidential. Voluntary means each participant has freely chosen to engage in the mediation. Private means procedural and substantive aspects of mediation sessions are shared only with the participants. Confidences are kept, except under very limited circumstances; commission of criminal acts, or violation of professional ethics, for example. Ordinarily, the mediator will not reveal information discussed in mediation sessions and cannot be subpoenaed as a witness in court proceedings. Mediation proceedings are not available as a public record. What happens in mediation stays in mediation.
explore options and offers disputants the control that is otherwise vested in a judicial officer. When the parties become empowered decision makers there is potential for a resolution of their own making.
“The web of our life is of a mingled yarn, good and ill together.” — William Shakespeare, All’s Well That Ends Well, Act 4 Scene 3, Lines 68-69 There are potential drawbacks to the mediation process. Mediation often is usually cost effective; however, sometimes monetary savings are not realized, matters do not completely resolve or parties reach an insurmountable impasse. Before you commit to the process, be aware of the terrain that lies between the devil and the deep blue sea; in other words, roadmap the waypoints so you engage productively.
Only the settlement agreement, if any is reached, may be introduced in a court proceeding. Because the mediation process is private and confidential, mediation provides the participants with opportunities to engage in frank conversation and to explore openly all of the topics that are relevant to the dispute in a setting where no one is observing or recording the discussions.1
Mediation in family law is a tool, and can produce flawed outcomes, as can any tool that is not skillfully handled. Choose your mediator wisely; find the right person to facilitate your discussions. Remember, the skilled mediator’s control of the procedural aspects of the mediation influences the substantive discussions held in your mediation sessions.
Mediation encourages parties to engage in important discussions that may not be possible in the more formal courtroom setting. Courts have their own rules and timelines that are driven by the legal system. If the parties fail to settle their dispute in court, the judge sets a trial date and becomes the decision maker. In mediation, the parties control the substantive discussions and any agreements made. In mediation, parties can speak freely about emotions as well as facts. Solutions need not be defined solely by case law and legal argument. Mediation provides the luxury of time to
Mediation is voluntary. A disputant may refuse mediation – a non-starter that may escalate tensions. A related concern is rooted in the relationship of the parties. Are the parties on an equal footing or is the balance of power weighted unequally due to factors such as wealth, status, role and resources? If the relationship between disputants is disproportionately skewed, a perceptive mediator equalizes the imbalance. Another potential drawback to mediation is proceeding when parties lack information: for
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Mediation: Pros & Cons Continued from page 7
example, coming to the table before discovery concludes or when one party in a family law matter withholds mandatory disclosures. Know what you need before you proceed! Preparation for mediation takes time – another variation on the theme of becoming informed so all salient issues can be addressed. Finally, costs can rapidly escalate if experts are needed to explain technical or financial information to anchor discussions. Inform yourself. If you are seeking solutions and want to resolve problems cooperatively without the pressures of the courtroom, dealing with aggressive litigation tactics and giving away your decision-making powers to the judge, choose mediation. In these times, when tempers are flared and the family courts are backlogged, mediation might be the best choice of all.
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Joann Babiak is an experienced California attorney and mediator. She works with clients navigating divorce and with sole practitioners, partnerships and entrepreneurs. She volunteers as a board member with Community Violence Solutions, an organization dedicated to working in partnership with community to end sexual assault and family violence through prevention, crisis services, and treatment. Her past experiences in large government organizations, corporate settings and law firms inform her work as an attorney, a speaker, a writer and a facilitator of compelling conversations.
burning across Northern California, resulting in “worst-in-world” air quality.
1. Aiden Vaziri and Anna Buchmann “Smoke: Worst-in-world air quality is another reason to stay inside” San Francisco Chronicle , Thursday August 20, 2020 at A1, reporting 367 wildfires
8. Some mediators choose to take notes during the session and destroy their writings when mediation has concluded.
2. Napa, Marin, Sonoma, Solano, San Francisco, San Mateo, Contra Costa, Alameda and Santa Clara 3. Erin Allday, “Pandemic’s toll hits 1,000 in Bay Area” San Francisco Chronicle, Thursday August 20, 2020 at A1. 3. SFist.com/bay-area-coronavirus-information-updated-daily. 5. Tuma, D., 2020. Major Heat Wave Coming To Bay Area For Labor Day Weekend: Here’s How Hot It Will Be. [online] ABC7 San Francisco. Available at: <https://abc7news.com/bay-area-weatherflex-alert-ca-accuweather-forecast/6405247/> [Accessed 8 September 2020]. 6. See, https://baykeeper.org/our-work/ climate-change-adaptation-san-franciscobay-area 7. California Rules of Professional Conduct Rule 1.1 addresses competence in representation and Rule 1.2 speaks to the Scope of Representation and the Allocation of Authority between attorney and client.
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The Importance of Disclosure and Financial Consistency
in Divorce and Tax by Charlie Burak, CPA
For most of their lives, individuals guide their financial decisions with two primary goals: Goal number one: to make as much money as possible. Once an individual has had a taste of success with this first goal, then goal number two becomes very clear: to pay as little of this income as possible toward taxes. Successful individuals spend years creating structures to allow for maximum benefit with minimum tax. Suddenly, however, for many of these successful individuals, a new goal comes immediately to the forefront. How are they going to retain as much value as possible through a marital dissolution? Many divorcing parties are simply looking for a fair and equitable resolution of their property division. There is nothing inherently wrong with the goal of retaining value through the divorce process. The goal itself is not unreasonable for a person confronting the most expensive individual event of their lives. The problem arises when the singular goal of maximizing their side of the divorce ledger may conflict with the other priorities of income and taxes. On my first day of preparing tax returns in a CPA firm, my boss posed to me the following question: would I like to pay more or less in taxes? The correct answer is that we 10
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should want to pay more in taxes, because it is a primary indicator that we made more money that year. It’s not a lesson against tax planning, but rather a reminder that one should always keep priorities in line. Less tax should not be the primary metric by which one evaluates the financial year The same concept can apply even more drastically during a marital dissolution. It can take years for individuals to effectively optimize the income/tax equation. Often, divorcing parties have had little to no time to plan for divorce. The sudden prospect of loss can become so overwhelming that an otherwise prudent decision maker may operate from a position of uncharacteristic panic. This can lead to poor and short-sighted decisions which can create unplanned negative consequences, hindering all financial priorities. One of our first professional responsibilities as litigation consultants and experts is to inform clients of the rules of family law. Family law is often not intuitive, and parties are shocked to learn the legal consequences which they have unwittingly created by prior actions. Prior efforts to maximize profits and minimize taxes may suddenly become useful tools against them. One of only three key elements of the fraud triangle is rationalization and it is a normal psychological response for an individual hearing this news to
search for all ways to mitigate what they foresee as an unfair loss they are about to incur. We should make sure as professionals that when we advise clients of family law rules, we should also inform them of how a singular focus on minimizing their perception of loss in divorce may actually lead to increased cost both in the divorce and to the taxing authorities. A critical first lesson is that the IRS generally does not care what you agree to in your divorce if it conflicts with the facts or conflicts with the Internal Revenue Code. For example, a party may stipulate to an order that the high-earner spouse will claim head of household status for all future years. However, if that individual does not meet all IRS rules to claim this status, then the IRS can reject the claim. Similarly, when a party purchases a home from their spouse, the payment cannot be added to tax basis. No matter of
legal drafting will convince the IRS to deviate from the code. The second lesson is consistency. In life, one prioritizes maximum benefit with minimum tax. In divorce, one may prioritize presentation of less benefit and more tax. These conflicting motivations can lead to trouble. For example, a party may delay or under-report disclosure of their income in the divorce because they fear they may have to share in the divorce. This sometimes leads them to delay tax filings as well. The combination of time and the divorce process has a way of bringing this information to light, eventually, whether by eventual filing or by investigation. On the divorce side, delayed or errant reporting could subject a party to sanctions, a loss of credibility and extension of the legal process with increase in legal costs. This behavior can also lead to
tax penalties which the court may reasonably add to the increasing tally of costs accruing to the obfuscating party. The tax code dictates that community income should generally be reported 50% by each party. If both parties are not coordinated and knowledgeable about the facts, then it is likely that one or both parties are going to incorrectly report on their taxes. We have similar responsibilities to inform the “out-spouse” (the less advantaged spouse) of the risk of creating imbalance between their tax and legal motivations. For example, during the legal process the outspouse may claim habitual underreporting and/or large community income owed to them from their soon-to-be ex-spouse. That same party may plan to file separate tax returns reporting little to no income. These individuals need to be aware
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Who Has Authority to Act if You, Your Spouse or Domestic Partner Becomes
Incapacitated by Illness or Injury? by Carolyn Cain There is a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and are responsible for their acts or decisions. Probate Code Section 810. A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is also rebuttable (a presumption affecting the burden of proof). Probate Code Section 46571 Despite the presumptions of capacity for finances and health care, are you prepared if you, your spouse, or your domestic partner becomes incapacitated by illness or injury? Will you need to apply to the court for a conservatorship of the person and/or estate for authority to make medical or financial decisions for your spouse or domestic partner? Can a conservator of the person and/or estate be avoided with simple estate planning tools available in the judicial council forms? 12
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Authority for Medical Decisions
The incapacitation of a spouse or domestic partner by illness or injury may make it difficult or impossible to obtain information and make health care decisions regarding your spouse or domestic partner. Probate Code Section 4716 authorizes a spouse or domestic partner to make health care decisions for an incapacitated spouse or domestic partner. A patient may designate an adult as a surrogate to make health care decisions by personally informing the supervising health care provider. Probate Code Section 4711. A surrogate designation is effective only during treatment or illness, during the stay in the health care institution, or for 60 days, whichever period is shorter. Probate Code Section 4711(b). The execution of an Advanced Health Care Directive (judicial
council form NONNJC-020) authorizes your spouse, domestic partner, adult child, etc. to act as your agent to obtain information and make decisions regarding your health care. An Advanced Health Care Directive can be executed that is effective immediately or in the alternative to spring into operation in the event of incapacitation. An Advanced Health Care Directive can also include a nomination of a conservator of the person. Probate Code Section 1810.
Family Code Section 1100 authorizes either spouse or domestic partner to manage and control the community personal property. But Family Code Section 1102 requires both spouses, either personally or by a duly authorized agent, to execute an instrument that sells, conveys, encumbers, or leases community real property for more than one year.
The court is authorized to issue an order dispensing with the requirement of the other spouse’s consent if both of the following requirements are met: (1) The proposed transaction is in the best interest of the community, and (2) Consent has been arbitrarily refused or cannot
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You can also petition the court for an order to be appointed conservator of the person if your spouse or domestic partner is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter. Probate Code Section 1800.3(a). Subject to the court’s right to appoint a conservator in the best interest of a conservatee, a spouse or domestic partner has priority to serve as conservator. Probate Code Section 1812. Probate Code Section 4716, the designation of a surrogate under Probate Code Section 4711(b), or better, the execution of an Advanced Health Care Directive can avoid delay in obtaining needed medical information and health care for you, your spouse, or domestic partner. An Advanced Health Care Directive can avoid the need to obtain a court order authorizing you to act as conservator for your spouse or domestic partner if he or she becomes incapacitated by illness or injury.
Financial Decisions
The incapacitation of a spouse or domestic partner may make the sale, encumbrance, or lease of community real property necessary to pay for the cost of medical care and/or to compensate for the incapacitated spouse’s loss of income. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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The Importance of Disclosure and Financial Consistency Continued from page 11
that one of the tests that the IRS will implement when determining either the innocent spouse claims made during marriage or whether the community property should be reported unequally after separation is (1) whether the “out-spouse” expects to receive any direct or indirect benefit from the transaction AND (2) whether they “didn’t know of, and had no reason to know of, that community income.” It is easy to see how such conflict between legal claims and tax reporting could lead to tax trouble for all involved.
We cannot control our clients’ financial decisions or their proper disclosure of assets. What we can do is make sure that when we explain family law rules to clients, we also make sure to remind them that this process does not supersede tax obligations and to counsel them why providing clear, timely and consistent disclosure is the best choice. Charlie A. Burak CPA/ABV/CFF, CFE, CVA is the Principal at Burak & Associates CPAs in Walnut Creek. For 16 years his practice focus has been Forensic Accounting, Business Valuation, Income Tax and Consulting Services for individuals and privately held companies. He has served as individuals’ and courts’ expert in litigation and has testified in most Bay Area counties. Charlie is accredited in busi-
ness valuation, certified in financial forensics, a Certified Fraud Examiner and a Certified Valuation Analyst. He is a graduate of the Leadership Contra Costa program, a current Council Representative to the CalCPA state Board of Directors and State Chair of the CalCPA Amicus Curiae Committee. In the past he has been President of the CalCPA East Bay Chapter, State Chair of the CalCPA Family Law Section and Co-Chair of the CalCPA Family Law Conference.
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MORRILL LAW Trust and Estate Litigation
Who Has Authority to Act? Continued from page 13
be obtained due to the physical incapacity, mental incapacity, or prolonged absence of the nonconsenting spouse. Family Code Section 1101(e).
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A conservatorship of the estate and a court order issued by the Probate Court can also authorize a spouse or domestic partner to act on behalf of an incapacitated spouse or domestic partner. A conservator of the estate may be appointed for a person who is substantially unable to manage his or her financial resources or resist fraud or undue influence. Probate Code Section 1800.3(b). The execution of a Uniform Statutory Power of Attorney (judicial council form NONNJC-019) authorizing a spouse, domestic partner, or another adult to act in the event of incapacitation can avoid the need for a court order to act on behalf of an incapacitated spouse or domestic partner regarding real property transactions. A revocable trust can also be executed conveying the spouses or domestic partners’ assets to the spouses or domestic partners as trustees. Carolyn Cain has practiced law for 27 years, was recognized as a Super Lawyer from 2016 to 2020, a graduate of St. Mary’s College, and John F. Kennedy University School of Law. Carolyn focuses her law practice on probate related areas and litigation that includes estate planning, conservatorships, guardianships, trust administration, and financial elder abuse. Carolyn is an avid reader, gardener, knitter, and has traveled to 27 countries. She speaks Spanish and French at an intermediate level. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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Do Child Support Orders Survive the Death of the Payor? by Virginia Ekelund When first encountering this issue, you might assume that the payment of child support should no longer be required if the supporting party has died. After all, if the supporting party has passed, they are no longer working, so why should child support be required if the payor has no income to pay child support? Furthermore, when a supporting spouse dies, there is usually no obligation to pay spousal support, so why should child support be any different? If you believe the answer to the above question is “no,” namely, that child support orders do not survive the death of the payor, you would be wrong.
Child Support Orders Do Survive the Death of the Supporting Party
Once a child support agreement has been incorporated into a court order, the obligation is courtimposed rather than contractual. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947) The obligation to provide child support pursuant to that court order will generally continue until the child reaches age 18 (except for a full-time high school student who is not self-supporting until graduation or age 19, whichever occurs first), the child dies or
the child becomes emancipated. (Family Code Sections 4001, 6500, 3901(a)) Case law has firmly established that a child support obligation either by court order or pursuant to a judgment will survive the death of a supporting parent and can be pursued against the payor spouse’s estate. (Taylor v. George (1949) 34 Cal. 2d 552, 556). “In California, the rule is that the obligation of a father (or mother) to support his (or her) minor child which is fixed by divorce decree . . . does not cease upon the father’s (or mother’s) death, but survives as a charge against his (or her) estate.”. (See: In re Marriage of Bertrand (1995) 33 Cal. App. 4th 437, 440); In re Marriage of Gregory (1991) 230 Cal. App. 3d 112, 115.
The Support Order or Judgment Can Even be Enforced Against a Trust by Either the Probate or the Family Court
A child support claim can be made against a trust established by a deceased payor of child support. A supporting parent’s estate, for purposes of a child support order, includes property placed in a living
trust. Probate Code, § 19001(a), provides a clear statement of legislative intent that property put into a living trust (i.e., one subject to the trustor’s power of revocation) must be available to satisfy a valid child support obligation (which is a creditor’s claim), no matter what the trust’s terms of distribution. In fact, a claim for child support may be made in either the probate court or it may be made in the family law court. Although Probate Code section 17200 gives the probate court exclusive jurisdiction over the “internal affairs of trusts,” there is “concurrent” jurisdiction over “proceedings” by “creditors . . . of trusts.”
The Receipt of Social Security Survivor Benefits Does Not Necessarily Offset a Child Support Obligation
Surprisingly, courts have determined that there is no basis for the proposition that the receipt of significant social security death benefits, even if they exceed the current amount of the child support order, will necessarily satisfy a decedent’s obligation of child support. (See: United States v. Harue Hayashi (9th Cir. 1960) 282 F.2d 599, 604)
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Child Support Orders Continued from page 17
In Estate of Jameson (1964) 224 Cal.App.2d 517, it was an abuse of discretion to deny an allowance to a minor child on the theory he had “a reasonable maintenance derived from other property” under Probate Code section 682 when all that he had were social security payments. The court reasoned an obligation to pay support under a divorce decree was not met by social security payments which were involuntary so far as the deceased father was concerned. In Taylor v. George (1949) 24 Cal.2d 552, 556, the court determined that since husband was neither retired nor disabled at the time of the dissolution, the child was not then receiving Social Security benefits and, such benefits, perforce, were not factored into the determination of husband’s support obligation. Although the husband had since died, his child support obligation survived his death and was a charge against his estate. Regarding future child support payments, the court (whether probate or family) has jurisdiction and discretion to consider what income and assets of the estate or trust are available for support, and to consider what other income is being received by the children, including social security benefits. At that time, the court may order a reduction or an increase in the amount of child support ordered, or possibly even terminate support, retroactive to the time an application for reduction or termination is filed and served. ( Estate of Hoffman (1963) 213 Cal. App.2d 635, 642.) When a request for modification of child support is made, the court can consider all the circumstances, including, but not limited to, what income is available to the trust or the 18
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estate for payment of child support, consider that the minor children are in receipt of social security benefits or what other income is available to them for purposes of support. While the case of In re Marriage of Bertrand (1993) 33 Cal.App.4th 437, held it was judicial error for the trial court to have determined that the social security death benefits satisfied and discharged the estate’s liability for support, that court also stated that: “[t]he trial court did not rule on the executor’s motion to modify. Instead, the court ruled that the Social Security benefits satisfied the estate’s support obligation. Although this ruling was judicial error, the trial court can nevertheless consider such benefits in ruling on the executor’s motion to modify the support obligation.” (Emphasis added) In conclusion, when a supporting payor of child support dies with support orders in place, said orders remain in full force and survive the death of the supporting payor of child support. The recipient of the support may make a claim against the estate, even if all the monies are in trust, until such orders are modified or terminated. In fact, until modified, the amount of child support, including child support add-ons such as childcare, uninsured medical expenses, and so forth will continue to accrue
and be payable by the estate until modified or terminated. (Estate of Murphy (1964) 225 Cal.App.2d 224, 236.) If you represent the estate of the deceased child support payor, the sooner you seek a modification of the child support orders on behalf of the estate, the sooner the support obligation may be modified or terminated. If you represent the recipient of child support, be sure to seek support against the estate of the deceased child support payor. Virginia Ekelund is a Certified Family Law Specialist with with Doyle Quane in Danville, California. She is a graduate of U.C. Berkeley and received her law degree from Santa Clara University. She also recently obtained an LL.M. in Taxation from Golden Gate University, graduating with Honors. In addition to her work as a California State Bar Certified Specialist in Family Law, Virginia also successfully represents clients in a variety of litigation matters including trust disputes and estate related matters. Virginia’s diverse legal experience allows her to quickly identify legal issues and implement the strongest possible strategy to address them.
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In Memoriam Doing the Right Thing Commissioner
James H. Libbey Commissioner James H. Libbey passed away on February 13, 2021. Commissioner Libbey was a native of Contra Costa County. He graduated from Dartmouth College and obtained his JD from USF. He served as a Deputy DA in Contra Costa County for 3 years, then formed a law firm in Antioch with Richard Groff. In 1980 he was appointed Family Law Commissioner for the Contra Costa Superior Court, a role he held for 27 years until his retirement in 2008. When the Family Law section was formed in 1988, he was a strong supporter and advocate for the interaction between the Bench and Bar which exists today in the form of the Bench-Bar Committee. He was also an early supporter of family law mediation. Commissioner Libbey was an editorial consultant to Matthew Bender’s California Family Law Monthly, a frequent lecturer to the California Judicial College and a panelist in CEB seminars devoted to family law issues. He was voted “Family Law Judge of the Year” by the Family Law Section of the State Bar. In addition to his work in the family law field, he was a member of the Antioch Unified School District Board and served on the Board of Trustees of both the Delta Memorial Hospital (now Sutter Delta Medical Center) and the Merritt Peralta Medical Center. Here are thoughts from some long-time colleagues: Jim served as a Family Law Commissioner with our court for more than 25 years before retiring in 2008. He was a statewide judicial leader, as well as a mentor, motivator and friend to all of our judges that served on the Family Law bench. I know that I wouldn’t have made it through my time there without his wise counsel and advice. While he was kind of cantankerous, his wit, warmth and kindness always shined through his gruff exterior. He was a favorite of court staff and the attorneys that appeared before him. – Hon. Steve Austin Thinking back to the Contra Costa Bench as it existed in 1980, there are not too many people left of that noble crew. Jim was one of them. He had great stories, not just about his time as a lawyer and Commissioner in Contra Costa, but also his exploits as a saxophone player working his way through Dartmouth College playing jobs in New England towns. Jim Libbey was a most entertaining personality. – Hon. Richard Flier (ret)
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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The Doctrine of Implied What?
From the Memorandum of Intended Decision to the Statement of Decision and Appeal by John Schreiber
The long, drawn-out process of completing a hearing on property division, domestic violence, permanent spousal and child support under Family Code § 217(a) is complete. The matter is submitted. The parties await the decision from the trial court. While, after all the time and effort and discovery and expense, the end of the case seems near, the case is only ending one stage and beginning another: statement of decision, which takes counsel and litigants from the trial court’s tentative decision to judgment, and perhaps to appeal. The steps the parties and counsel take next may significantly affect their chances to preserve their hardearned success through statement of decision and into appeal, or to reduce or reverse the defects in the court’s ruling in the trial court and on appeal. The statement of decision stage begins with the tentative decision. The trial court can issue its tentative decision two ways: in open court entered in the minutes or by written statement to the clerk, which the clerk must promptly serve on all parties who appeared in the matter. California Rule of Court 3.1590(a). The tentative decision or memorandum of intended decision is not a judgment and is not binding on the trial court. Rule 3.1590(b). The trial court’s tentative decision may illustrate the trial court’s theory but cannot be used “to impeach the order or judgment.” Marriage of Ditto (1988) 206 Cal.App.3d 643, 646. 20
MARCH 2021
The statement of decision and judgment, not the tentative or memorandum of intended decision, represent the final decision of the trial court. Ditto, 206 Cal.App.3d at 646-647. Therefore, the trial court is not bound by its tentative decision and can enter a statement of decision and judgment wholly different from that initially announced by the trial court. Ditto, supra. The concept derives from the time-honored principle that appellate courts are concerned with the correctness of the decision and judgment, not with the reasoning. An appealed judgment will be affirmed if it is correct on any theory, even if different from that asserted by the trial court, even if it was not raised in the trial court. Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330. Rule of Court 3.1590(c) sets forth two instances in which a tentative decision takes on more lasting impact: Rule 3.1590(c)(1) allows a trial court in its tentative decision to state that the tentative decision is the court’s proposed statement of decision subject to a party’s objection under Rule 3.1590(g); Rule 3.1590(c)(4) allows the trial court to direct in its tentative decision that the tentative decision will become the statement of decision, unless, within 10 days of announcement or service of the tentative decision, a party specifies controverted issues as to which the party seeks a statement of decision or makes proposals not included within the tentative decision.1
A statement of decision explains the factual and legal basis for the trial court’s decision for each of the principal controverted issues at trial. California Code of Civil Procedure §632. It is “at least as much, if not more, for the benefit of the appellate court as for the trial court.” In re Marriage of Sellers (2003)110 Cal.App.4th 1007, 1010.2 While a “trial court’s failure to provide the factual and legal basis for its decision on a principal, controverted issue” is used to comprise reversible error, (In re Marriage of AnanehFirempong (1990) 219 Cal.App.3d 272, 282) showing harmful error is now required to trigger reversal for a trial court’s failure to do so. F.P. v. Monier (2017) 3 Cal.5th 1099, 1108. If timely requested, the statement must be in writing, unless the parties at trial agree otherwise, or if the trial concludes within one calendar day or less than eight hours over more than one day, in which case the statement may be made orally in the presence of the parties. CCP §632. To be timely requested, a party must seek a statement of decision within ten days after the trial court announces or serves its tentative decision. If the trial lasts less than one calendar day or less than eight hours over more than one day, the request must be made before submission of the matter for decision. CCP §632.
litigants. In Marriage of Ditto, as cited above, the appellant failed to request a statement of decision and none was rendered. Instead, appellant relied on the memorandum of intended decision to show error. Ditto, 206 Cal.App.3d at 646. The court held that appellant could not rely on the memorandum of intended decision. Failing to timely request a statement of decision triggers severe consequences. If a party fails to timely request a statement of decision, then the appellate court will apply the doctrine of implied findings, i.e., infer that the trial court made all necessary findings to support the judgment. In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133. This doctrine “is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate
record affirmatively proving error.” Fladboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58. Timely requesting a statement of decision is the first of a two-step process to avoid the doctrine of implied findings. The second step arises if the statement of decision includes any misstatements or omits any controverted issues. In that instance, the party seeking to avoid the doctrine and to use the statement of decision as a basis for reversal must either file objections to such deficiencies or file either a motion for new trial under CCP §657 or a motion to vacate and enter a different judgment under CCP §663. CCP §634; Arceneaux, supra, 51 Cal.3d at 1133-1134. The deadline to timely object is 15 days following service of the proposed statement of decision. Rule of Court 3.1590(g).4 If a litigant fails to timely file such objections then once again, the
Continued on page 22
The party requesting the statement must specify the controverted issues for which it requests a statement. CCP §632; Rule 3.1590(d). Here, “controverted issues” mean “ultimate facts” rather than “evidentiary facts.” Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 559. An “ultimate fact” refers to an essential element of a claim or defense, without which that claim or defense must fail. Yield Dynamics, supra.3 Failing to request an adequate statement of decision, or none at all, can be disastrous for counsel and CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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Doctrine
Continued from page 21
path to a successful appeal becomes far more difficult, if not impossible, to overcome.
there is no 5-day extension under CCP §1013(a) for filing a new trial motion or motion to vacate and enter different judgment under CCP §§657, 663. CCP §1013(a).
Otherwise, the trial court in its tentative decision will indicate that the trial court will either prepare the statement of decision under Rule 3.1590(c)(2) or direct a party to prepare the statement of decision. Rule 3.1590(c)(3).
5.
1.
doctrine of implied findings will apply to imply all necessary findings to support the decision as to the statement’s deficiencies. Arceneaux, 51 Cal.3d at 1133-1134.5 When the doctrine of implied findings applies, an appellant must show that there is no substantial evidence to support the judgment. Fladboe, 150 Cal.App.4th at 60. The substantial evidence standard presents a “daunting burden” for an appellant seeking reversal of a factual determination made in the trial court. Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188. A party seeking to challenge an unfavorable result following trial or other core family law evidentiary hearings set forth in Family Code § 217 therefore must carefully follow these post-trial procedures lest their
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Family Code § 210 states that: “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally,...apply to, and constitute the rules of practice and procedure in, proceedings under this code.”
2.
People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509 represents an extreme example of seeking too much information in the statement of decision. In Casa Blanca, the defendant nursing home made 16 demands, each with several subparts, totaling over 75 questions on evidentiary facts on issues not at stake in the pleadings. Casa Blanca, 159 Cal.App.3d at 525. The appellate court described the nursing home’s request as “seeking an inquisition, a rehearing of the evidence,” and found that the trial court was not required to provide specific answers “so long as the findings in the statement of decision fairly disclose the court’s determination of all material issues.” Casa Blanca, supra.
3.
Under CCP §1013(a), the 15-day deadline for filing an objection is extended by five (5) days if the proposed statement was mailed. However,
4.
Failure to object to a defective statement of decision under CCP §634 does not comprise a waiver when a legal error appears on the face of the statement and the litigant fails to respond to it. United Services Auto Assn. v. Dalrymple (1991) 234 Cal.App.3d 182, 186. In those instances, there is no omission nor ambiguity, no “findings,” just a legal conclusion subject to challenge. Dalrymple, 234 Cal.App.3d at 186.
John Schreiber is a Certified Specialist in Appellate Law, State Bar of California, Board of Legal Specialization and practices in Benicia. His practice focuses exclusively on handling civil appellate matters on a wide range of issues and also assists clients and trial counsel preand post-trial motions in preparation for possible appeals. John has long been involved with the CCCBA’s Appellate Section in a variety of capacities, whether as president, program director, or presenting seminars to the membership. For most of the past decade he has been named by his peers as a Northern California Super Lawyer.
Love, undone by Katy Gronowski
Divorces are easy to come by. Annulments, not so much. Any seasoned family law attorney will tell you that prevailing on a petition for nullity of a marriage is predicated on good fortune. One must be blessed with a trinity of the right facts, the right law and the right judge. A recent appellate case on annulment is In Re Marriage of GoodwinMitchell and Mitchell, (2019) 40 Cal. App.5th 232. This case brings to mind the wisdom of songstress Taylor Swift who cautioned, “I think I’ve seen this film before, and I didn’t like the ending….”
First, the law:
While there are only two grounds to dissolve a marriage in California; irreconcilable differences and incurable insanity, there are many grounds to nullify a marriage. These grounds are listed in Family Code section 2210 and include incest, bigamy, minority, prior existing marriage, unsound mind, fraud, force and incapacity. The Goodwin-Mitchell case was decided on the ground of fraud. Family Code section 2210(d) provides that a marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud. However, the defrauded spouse may not obtain an annulment on the ground of fraud if he or she freely cohabited with the offending spouse after gaining full knowledge of the facts constituting the fraud. Fraud must be shown
by clear and convincing evidence. The fraud must directly defeat the marriage relationship. In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, sheds light on what constitutes fraud. Ramirez found that a fraudulent intent not to perform a vital marital duty must exist in the mind of the offending spouse at the time that the parties marry. Similarly, a fraudulent intent to be unfaithful held by a spouse at the time of the marriage may support an annulment. As a further example, In re Marriage of Liu, (1987) 197 Cal.App.3d 143, held that annulments could be based on a party’s concealed intent to marry with the sole intent of obtaining a green card.
And then the facts:
Carolyn Goodwin-Mitchell helped her first husband, a foreign national, obtain permanent residency in the United States. However, that marriage ended in divorce. After her divorce from her first husband, Carolyn “met” online another gentleman, Michael, also from overseas. They “began dating over the internet.” Michael had big plans and Carolyn was game once again to be swept off her feet by a stranger. Michael told Carolyn that “he wanted to move to the United States so he could live with her, open a restaurant, and join the U.S. Army.” In June 2015, Carolyn traveled abroad to meet
Continued on page 24
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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Love, Undone
Continued from page 23 Michael. They married during that first visit. Carolyn returned to the U.S. and applied for a visa on Michael’s behalf. The visa application was approved in September 2016, and Michael joined her in November. Michael then had the decency to wait one full week before “soliciting call-girls, prostitution, and other women off of sites….” In February of 2017, Michael was jailed following an incident of domestic violence. A restraining order was issued. While Michael was in jail, Carolyn discovered text messages he had sent to his mother, announcing that he would remain with Carolyn only until he got his
Elder Law is
green card. Carolyn also discovered texts between Michael and another woman, D., proclaiming his love for D. and revealing his plan to ditch Carolyn. When Michael got out of jail, Carolyn had the restraining order lifted. She also allowed him to move back in with her. The happy couple resumed cohabiting. Their newfound bliss was shortlived. In March 2017, Carolyn found out that Michael had slept in their home with another woman, Kim. In June 2017, Carolyn filed for an annulment of the marriage on the basis of fraud. In the alternative, she sought a dissolution of the marriage. Still, the couple continued to live together and have intimate relations until November of 2017, when Carolyn asked him to move
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out. (One suspects Carolyn’s online endeavors had been fruitful again, and she hoped to find someone just as gentlemanly as Michael.) At trial, Michael denied soliciting women on the internet. He said D. was “just a friend.” In response to Michael’s denial of cheating, Carolyn testified that she had taped his encounters with Kim. Carolyn testified that she had found Kim’s telephone number on Michael’s phone, along with telephone numbers for escort services. In rebuttal, Michael testified that Kim was “an acquaintance who stopped by the house” and had made advances and demanded sex during her visit. The trial court noted that, in less than a year after coming to the U.S., Michael had “engaged in two relationships with women external to his marriage.” The trial court confirmed that “the law is clear that a spouse is entitled to more than mere cohabitation with the other and that... spouses owe one another a fiduciary duty of fidelity and duty to live with one another…” Concluding that this was “not the case here,” the trial court granted Carolyn’s petition for nullity.
And I didn’t like the ending…
The court of appeal held that the trial court erred when it granted Carolyn’s petition for nullity because “the couple continued to cohabit long after Carolyn discovered his infidelity.” The court cited the statutory bar of Family Code section 2210(d) under which a marriage may not be voided on the ground of fraud if “the party whose consent was obtained by fraud afterwards, and with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.” Accordingly, the appellate court reversed the judgment
and remanded to the trial court for proceedings on Carolyn’s petition for dissolution. In other words, when you actually have enough to get an annulment granted, run with it. Annulments are hard to achieve, even in the best of circumstances. Carolyn had a plethora of facts to support her claim of fraud. However, her own conduct after discovery of the fraud ultimately destroyed her claim. There’s a proverb that comes to mind: “fool me once, shame on you, fool me twice, shame on me.” And that’s how the appellate court saw it. Katy Gronowski is a certified family law specialist, State Bar Board of Legal Specialization, and a certified specialist in Family Law Trial Advocacy, National Board of Trial Advocacy. She has taught law school courses in community property and family law. She graduated with honors from UC Berkeley and attended Santa Clara University School of Law. Katy has been selected to Super Lawyers and has been named one of the top women lawyers in Northern California. She has served on the boards of CCCBA’s Women’s Section (past president), the Family Law Section and the Barristers Section.
Advertising Opportunities
in Contra Costa Lawyer Magazine
Contra Costa
LAWYER Volume 34, Number 2 | March
2021
The Family Law Issue
Contra Costa Lawyer magazine is the official publication of the Contra Costa County Bar Association. With approximately 1,500 members in 22 sections, the CCCBA has an active membership. Approximately 60% work in solo/small firms and exercise buying decisions on a wide range of legal service offerings. Advertising with the CCCBA is key to reaching decision makers and influencers in the legal marketplace in the East Bay Area. Trusted since 1934, the CCCBA continues to serve thousands of professionals and members of the public every year. Print and digital advertising and sponsorship opportunities are avalable now. Contact Communications Director, Carole Lucido for the 2021 Advertising Kit (clucido@cccba.org). Or find it online. Issue Date
Theme
Guest Editor(s)
May 2021 Lawyer Wellness
Ann Dalsin & Heidi Coad Hermelin
July
Access to Justice
Mary Grace Guzman
September
Estate Planning & Probate
Kathryn Schofield
November
Changes in the Law in a Time of Constant Change
Alice Cheng & Matt Cody
January 2022
The Bench & the Bar Association Issue
Kate Bieker & Theresa Hurley
Advertise in the award-winning Contra Costa Lawyer magazine in print or online. Advertise on our new website in a variety of targeted positions including our very busy attorney calendar of events, and on the home pages for each of our 22 sections. Sponsorship Opportunities are also available for educational as well as social gatherings on line and (hopefully) in-person events later this year.
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
25
CALENDAR UPCOMING EVENTS | OVERVIEW
March 10 | Education Committee & Elder Law Section
March 25 | Women’s Section
#7 How to Prepare Your Case for Trial/Mediation CCCBA ELder Law Training Series
more details on page 28
more details on page 27
March 18 | ADR & Litigation Sections Five Keys to Mediating with Power
March 18 |
Women’s Section Book Club
April 6 | Women’s Section
Women’s Section Social Hour more details on page 28
more details on page 27
April 22 | DEI Committee
DEI Committee, CWL & Superior Court
Diversity in Filmmaking
Strengthening Our Legal Community by Understanding Our Cultural Differences more details on page 27
March 19 | Barristers/Young Lawyers Section Bridging the Gap
more details on page 27
March 19 | Bay Area Bar Associations Virtual Trivia Night
more details on page 27
March 23 | Women’s Section
ApPEERing Productive more details on page 28
more details on page 28
April 27 | Solo Small Firm Section Law Firm Operations Roundtable with Diane Camacho more details on page 28
April 30 | Senior Section
Law Day 2021: Advancing the Rule of Law more details on page 28
May 13 | Appellate and Criminal Sections Protecting the Record for State Criminal and Civil Appeals more details on page 28
The Contra Costa County Bar Association certifies that the MCLE activities listed on pages 27-28 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.
Interested in some additional exposure for you, your firm or your company? Consider sponsoring an event or MCLE program. For more information, please contact Anne K. Wolf at awolf@cccba.org.
26
MARCH 2021
Education Committee & Elder Law Section
ADR and Litigation March 18 | Sections
March 18 | DEI Committee, CWL,
#7 How to Prepare Your Case for Trial/Mediation
Five Keys to Mediating with Power
2021 ELDER LAW TRAINING SERIES
Speaker: Robert Jacobs
Strengthening Our Legal Community by Understanding Our Cultural Differences -
Speakers: Hon. Susanne Fenstermacher, Hon. Virginia George
Mediation is more art than science. It’s a powerful opportunity to explore settlement possibilities. Come hear a seasoned mediator describe how the actions and choices of counsel (and the mediator) both before and during the mediation often make all the difference on whether or not a case settles.
March 10 |
Join us for a discussion of what to do and how best to advocate on behalf of your client in the respective legal realm (court vs mediation). Insider tips will be provided on what judges/mediators are looking for and what facts have the greatest impact in successfully presenting your client’s case.
Time: Noon – 1:30 pm, Zoom Meeting
Time: 5:30 pm – 7:30 pm, Zoom Meeting
MCLE: 1.5 hours General credit
MCLE: 1.5 hours General credit
Cost: $25 for members of the ADR and Litigtion Sections | $10 Law Student Section members | $30 CCCBA members | $35 non members
Cost: $30 CCCBA Elder Law & Estate Planning section members | $10 Law Student Section members | $40 CCCBA members | $50 non members Register: Online at www.cccba.org/attorney-events
March 19 | Barristers Section Bridging the Gap 2021 New Lawyers, Young Lawyers, Provisionally Licensed Lawyers, or New to the County? Take this opportunity to get acquainted with the Contra Costa County Bar Association, the Contra Costa County Superior Court, local judges, local practitioners... and much more! If you qualify as a NEW ADMITTEE for 2021 (1st year of practice only/never practiced before) or are a new PROVISIONALLY LICENSED LAWYER submit your membership application online to the CCCBA along with the $35 dues. Once you have become a member, click the ‘Member Sign-up’ button to attend for FREE. Time: Noon – 4:30 pm, Zoom Meeting MCLE: 4 hours General credit Cost: Free for New Admittee, Provisionally Licensed Lawyers (1st year of practice only), $15 Barristers Section members, $25 CCCBA members, $45 non members
Register: Online at www.cccba.org/attorney-events
March 19 |
Bay Area Bar Associations
Virtual Multi-Bar Trivia Night Join the Alameda County, Contra Costa County, Marin County, Santa Clara County, and San Mateo County Bar Associations for this popular social.
CCC Superior Court
A Cultural Competency Presentation
Speakers: Judge David Goldstein, Judge Benjamin T. Reyes, II, Benisa Berry, Mika Domingo, Mary Grace Guzman, Mona Nia, Summer Cyd Selleck, Celine Mui Simon Through panelist vignettes, this program will educate attorneys and judges about certain aspects of community/ethnicity/ identity that are not commonly known and explain practices seen as offensive or insensitive to a particular community. Time: 5:30 pm – 7:30 pm, Zoom Meeting MCLE: 1 hour Elimination of Bias credit Cost: $15 CCCBA members | $30 non members Register: Online at www.cccba.org/attorney-events
March 23 | Women’s Section ApPEERing Productive Speaker: Sarah Tetlow – Firm Focus
Time: 5:30 pm - 7:00 pm, Zoom Meeting
ApPEERing Productive is a unique workshop encouraging peer collaboration on challenges and successes that lawyers and busy professionals experience in their careers. Including additional expert productivity tips, the bi-monthly conversations will dive deeper into various components of the busy professionals’ life, including: sleep, work/life balance, email management, project management, self-care, family responsibilities and personal and professional goals. The topic for March is Wellness.
Cost: Free
Time: 1:00 pm - 2:00 pm, Zoom Meeting
Sign Up: Online at www.cccba.org/attorney-events
Cost: Free CCCBA members | $10 non members
With more trivia by last year’s reigning TriviaMaster, Michael Suey, the ACBA has invited other local bars to join for this multi-bar trivia night. Pick a friend to be on a mixed bar team with, or be added to a random team. Our theme is TIME.
Register: Online at www.cccba.org/attorney-events
Register: Online at www.cccba.org/attorney/calendar
For more information on these events: Unless noted otherwise, please contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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March 25 | Women’s Section
April 6 |
Women’s Section BOOK CLUB #6: “A Piece of Cake,” by Cupcake Brown
Women’s Section: Social Hour
With a special guest appearance by the author! As we strive to educate ourselves on the systemic racism that exists in our country, its origins, and what we can do to end it, please join the Women’s Section as we discuss: “A Piece of Cake,” by Cupcake Brown.
Women’s Section
We look forward to continuing the tradition of socializing and networking together with our Women’s Section colleagues and any and all CCCBA members and guests. Time: 4:30 pm - 6:00 pm, Zoom Meeting Cost: Free Register: Online at www.cccba.org/attorney-events
Time: 5:00 pm - 6:30 pm, Zoom Meeting
April 22 | DEI Committee Diversity in Filmmaking Speaker: Natasha S. Chee Award-winning entertainment attorney and music supervisor Natasha Chee will present a lively discussion about diversity in the entertainment industry and filmmaking. She will analyze laws and regulations enacted to protect and/or promote diversity and inclusion in the film industry and within the various guilds and unions. Natasha will also give an extensive visual overview of the history and diversity climate in Hollywood throughout the years. Time: 5:30 pm - 7:00 pm, Zoom Meeting
Cost: Free
MCLE: 1 hour Elimination of Bias credit
Register: Online at www.cccba.org/attorney-events
Cost: $10 Law Student Section members | $20 CCCBA members | $30 non members Register: Online at www.cccba.org/attorney-events
April 27 | Solo Practice & Small
April 30
Law Firm Operations Roundtable with Diane Camacho
Law Day 2021 Advancing the Rule of Law
Firm Section
Speaker: Diane Camacho There are many operational challenges partners in small firms face. Diane Camacho will continue to host these open discussions about challenges your firms are facing and share among the group suggestions and information. This month’s topic is Trust Accounting. Time: Noon - 1:00 pm, Zoom Meeting Cost:
Free for CCCBA members | $15 non members
Register: Online at www.cccba.org/attorney-events
| Senior Section
Speakers: Dean Erwin Chemerinsky, UC Berkeley School of Law Join Dean Chemerinsky for a discussion of the current status of the Rule of Law and the impact of recent developments. Time: Noon - 1:30 pm, Zoom Meeting MCLE: TBA Cost: Free for all CCCBA members and Law Academy students/teachers | $40 non members Register: Online at www.cccba.org/attorney-events
May 13
and Criminal | Appellate Sections
Protecting the Record for State Criminal & Civil Appeals Speakers: Tiffany Gates, Gary A. Watt The presentation will focus on sticky issues of record preservation occurring during trial, which can jeopardize the appeal. Topics will include how to grapple with deposition transcripts read during trial, the increasing frequency of emailed jury instructions discussions, and related conundrums. Time: Noon - 1:15 pm, Webinar MCLE: 1 hour Appellate Law Specialization and General credit Cost: $15 for members of the Appellate and Criminal Law Sections | $30 CCCBA members | $45 non members Register: Online at www.cccba.org/attorney-events
For more information on these events: Unless noted otherwise, please contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org 28
MARCH 2021
CLASSIFIEDS PROBATE PARALEGAL TO ATTORNEYS Joanne C. McCarthy, 3000F Danville Blvd., #257, Alamo, CA 94507 Call (925) 689-9244.
Advertiser Index ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
WALNUT CREEK, FOR ATTORNEYS ONLY
Barr & Young Attorneys . . . . . . . . . . . . . . . . . . . . . . 8
Beautiful offices w/ 11 solos. Networking. Single story building remodeled for lawyers. Built in’s, fireplace, molding, kit., conf rm, windows that open, etc. Very congenial. Rent varies. Paul 925/938-8990/pbelaw@pacbell.net
The Bray Law Firm. . . . . . . . . . . . . . . . . . . . . . . . . 21 First Republic Bank. . . . . . . . . . . . . . . . . . . . . . . . . 31 JAMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15 Lawyers Mutual. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
NOTARY SERVICE
LawPay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CCCBA members are eligible for free notary service at the CCCBA office in Concord. Contact Carole Lucido at (925) 370-2542 or clucido@cccba.org for an appointment.
Minchen Team. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Morrill Law Firm. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Candice Stoddard. . . . . . . . . . . . . . . . . . . . . . . . . . 18 The Law Offices of Michael J. Young Inc . . . . . . . . . . . . . . . . . . . . . . . . 24
The Lawyer Referral & Information Service Can Help Build Your Practice
If you’ve been looking for proven ways to grow your practice, Join the LRIS now! Clients are searching online for CCCBA LRISmember attorneys 24 hours a day. Contact us now for cases in all practice areas, and especially if: • You Specialize in Tenant Rights or Juvenile Dependency • You Speak Fluent Spanish (Cases in all specialties available) • You Will Accept Moderate Means Clients
Learn More! Contact Barbara Arsedo, CCCBA LRIS Director at barsedo@cccba.org or visit www.cccba.org/lawyer-referral-service/
(925) 370-2544
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
29
gratefully acknowledges its
2021 SUSTAINING LAW FIRMS Firms with 30+ attorneys: Miller Starr Regalia
Firms with 20-29 attorneys: Bowles & Verna, LLP Hanson Bridgett, LLP Littler Mendelson PC McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP
Firms with 11-19 attorneys:
Brothers Smith LLP Brown, Gee & Wenger, LLP Clapp Moroney Vucinich Beeman Scheley Doyle Quane Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci Greenan, Peffer, Sallander & Lally, LLP Hartog Baer & Hand APC Kilpatrick Townsend & Stockton
Firms with 5-10 attorneys: Acuna Regli
There is no fee to become a sustaining firm. These firms receive additional administrative support services and are recognized in the following ways: • On the CCCBA website at www.cccba.org/ sustaining-law-firms/ • In Contra Costa Lawyer magazine (in print and online)
Craddick, Candland & Conti
• In the CCCBA Membership Directory
Edrington, Schirmer & Murphy Ferber Law APC
Galloway, Lucchese, Everson & Picchi
Gillin, Jacobson, Ellis, Larsen & Lucey Horner Law Group
Livingston Law Firm, P.C. Morison & Prough, LLP Morrill Law
Seto Wood Schweickert, LLP
Whiting, Fallon, Ross & Abel LLP MARCH 2021
Sustaining Law Firms of the Contra Costa County Bar Association have a minimum of five Contra Costa-based attorneys and maintain current CCCBA membership for all attorneys practicing under the same firm name in the local office.
Barr & Young Attorneys
Casper, Meadows, Schwartz & Cook
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What Is a Sustaining Law Firm?
• Displays at the CCCBA office and at all CCCBA-sponsored events For more information, contact Jennifer Comages, CCCBA Membership Director at (925) 370-2543 or jcomages@cccba.org.
“First Republic’s approach — smart, efficient service that’s customized to our needs — aligns with the nature of our practice.” D U R I E TA N G R I L L P
Daralyn Durie, Partner (left); Ragesh Tangri, Partner (right)
(855) 886-4824 | firstrepublic.com | New York Stock Exchange symbol: FRC MEMBER FDIC AND EQUAL HOUSING LENDER
INTRODUCING
PRO
PROFESSIONAL
REFERRAL ORGANIZATION
The CCCBA Board of Directors is excited to announce the formation of a Contra Costa County Bar Association Professional Referral Organization (CCCBA PRO). PRO’s purpose is to facilitate groups of members and affiliate members who will become referral partners and help them generate new business opportunities. PRO is open to all CCCBA member attorneys and affiliate members with more than seven years’ experience in their field. Group members will be unique and will not have competition in their specific area of practice. For members with less than seven years’ experience, PRO will be working with the Barristers/Young Lawyers Section to establish a PRO group. This is an excellent opportunity for our community to develop deeper and more meaningful referral networks to support business growth and serve our clients better. Questions? Contact Theresa Hurley at thurley@cccba.org or (925) 370-2548.
Learn more and complete an application for CCCBA PRO at www.cccba.org/ member-center/ cccba-pro/
