Contra Costa Lawyer September 2013

Contra Costa

LAWYER Volume 26, Number 5 | September 2013

Redevelopment Dissolution: The End of an Era The Supreme Court Answers “What’s a Taking?” A Look At Discretionary Land Use Approvals

Real Estate

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Contra Costa 2013 BOARD OF DIRECTORS Jay Chafetz President Stephen Steinberg President-Elect Candice Stoddard Secretary Nick Casper Treasurer Audrey Gee Ex Officio Richard Alexander Philip Andersen Dean Barbieri Amanda Bevins Oliver Bray Denae Hildebrand Budde

Mary Carey Alison Chandler Elva Harding Peter Hass Reneé Livingston James Wu

LAWYER Volume 26 Number 5 | September 2013

The official publication of the

B A R A S S O C I A T I O N

FEATURES REDEVELOPMENT DISSOLUTION: THE END OF AN ERA by Craig Labadie

CCCBA EXECUTIVE DIRECTOR Lisa Reep | 925.288.2555 | lgreep@cccba.org

A LOOK AT DISCRETIONARY LAND USE APPROVALS

CCCBA main office 925.686.6900 | www.cccba.org

Jennifer Comages Theresa Hurley

Emily Day Barbara Arsedo

Systems Administrator and LRIS Coordinator Fee Arbitration Coordinator

THE SUPREME COURT ANSWERS “WHAT’S A TAKING?”

Dawnell Blaylock

Communications Coordinator

ADDED INCENTIVES FOR 1031s by G. Scott Haislet

CO-EDITORS EDITORIAL BOARD Harvey Sohnen Mark Ericsson 925.258.9300 925.930.6000

Nicole Mills Matthew Guichard

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COURT LIAISON INTERIM Ken Torre 925.957.5600

PRINTING Steven’s Printing 925.681.1774

PHOTOGRAPHER Moya Fotografx 510.847.8523

by Scott Jenny

CONTRA COSTA LAWYER

BOARD LIAISON Candice Stoddard

by David J. Larsen

Membership Coordinator Associate Executive Director

925.351.3171

925.459.8440 Elva Harding 925.215.4577 Patricia Kelly 925.258.9300 Craig Nevin 925.930.6016 David Pearson 925.287.0051 Stephen Steinberg 925.385.0644 Marlene Weinstein 925.942.5100 James Wu 925.658.0300

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 times online-only - 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. 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.

NEW REQUIREMENTS ON ACCESSIBILITY AND ENERGY USE DISCLOSURES

REAL ESTATE ETHICS

by Robert W. Richardson

by Carol M. Langford

DEPARTMENTS

INSIDE | by Craig S. Nevin

PRESIDENT’S MESSAGE | by Jay Chafetz

20 CENTER | Real Estate Law Section MCLE Breakfast All Sections’ Mixer Hosted by the Women’s Section Family Law Section Events Gala Reception Invitation 28

LAW LIBRARIES: AN ATTORNEY’S BEST RESOURCE | by Carey Rowan

32 COFFEE TALK What signs of real estate recovery are you seeing? 34 CALENDAR 38 CLASSIFIEDS

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

inside

rom many indicators, real estate appears to be on the rebound. Since 2006-2007, it was impossible not to be aware of the real estate meltdown and thereafter the general economic recession.

In 2007, about 80 percent of residential foreclosures resulted in the property being taken back by the lender. HowCraig S. Nevin ever, by 2012, that number had reversed and about 80 percent of residential foreclosures were being purchased by third parties. There are many indicators that appear to show recovery: The number of active projects and construction sites is without doubt increasing. One first-hand observer said the number of cranes in San Francisco went from under 10 to over 50. A construction labor shortage is predicted for the future—not many years off, but within two. I am, therefore, more than normally pleased to have been involved in bringing you this real estate edition of the Contra Costa Lawyer magazine. The edition starts off with arguably one of the biggest issues resulting from the meltdown: The elimination of California’s redevelopment agencies. Craig Labadie has provided an excellent article that helps explain the changes. Next, we have an article by David Larsen focused on best practices in obtaining project approvals, both from an owner’s and a developer’s perspective. In our next issue, David will look at obtaining discretionary approvals, from city or county perspective, which will make both articles even more insightful.

Once again, we are happy to include an article from Carol Langford on the ethical issues that arise in real estate law. We thank the authors of these articles for their time and contributions. It is perhaps a good time to remind readers that this magazine is not only for the readers—it is by the readers. Without contributions of ideas and articles from the bench and bar, there would be no Contra Costa Lawyer magazine. Submit ideas or articles at any time. s Formerly Associate General Counsel for a major real estate developer in Irvine, for over 25 years, Craig Nevin has provided litigation and transactional counsel to owners, developers, financial institutions, contractors, subcontractors and other companies in complex business, real estate, construction and development related matters. He has presented numerous seminars concerning real estate, construction, development, sales and mortgages, as well as litigation management and avoidance. Mr. Nevin is on the Board of Directors and is current Chair of Contra Costa Senior Legal Services and on the Advisory Board of Directors of The Law Center.

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Speaking of projects, Scott Jenny has provided an article that discusses not only conditions of approval but also concessions and “cash.” The article also addresses the issue of eminent domain and the important and interesting recent United State Supreme Court ruling on the Koontz case.

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SEPTEMBER 2013

president’s message

he meeting of the Board of Governors of the State Bar in October promises to be one of great significance. The board will consider some proposals that could have a large impact on the practice of law. One proposal concerns licensing of non-lawyers. As part of an attempt to meet the need for legal services of those who cannot afford to pay attorneys, the State Bar will consider whether to license nonlawyers to do certain routine or simple legal work. This topic seems destined to provoke strong passions on all sides. I don’t know all of the arguments in support of or in opposition to the proposal, but the idea in favor seems to be that this measure, if adopted, will not harm lawyers because the population it is serving cannot afford to pay for legal services anyway, and the measure

will allow them at least some access to justice. Obviously, one argument against it is that there are large numbers of unemployed or underemployed lawyers now, and that the measure may actually harm rather than help the target population by legalizing non-lawyers to do low-quality work. I understand that the Board of Governors of the State Bar will not be making any final decision on this matter in October, and until then, at most may appoint a task force to study the issue. If any of you have strong feelings on this topic, however, I encourage you to address any comments to Teri.Greenman@ calbar.ca.gov. Another topic to be addressed at the meeting is possible changes to current MCLE requirements. The proposal is to increase the number of required units from 25 to 36 in

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Jay Chafetz CCCBA Board President each reporting period. Again, public comment will be solicited. You may direct any comments to Laila .Bartlett@calbar.ca.gov by September 6, 2013. A third proposal will be whether to adopt a requirement of practical training for new lawyers. The proposal is to permit this requirement to be met by: 1. 15 units of practical skills training in the last two years of law school or through an approved clerkship. 2. 50 hours of mandatory pro bono work in the last year of law school or first year of practice, or 3. 10 hours of MCLE in the first year of practice on practical skills training. Your comments, if any, on this topic should be directed to Teri .Greenman@calbar.ca.gov. I don’t know about the rest of you, but the annual meeting of the State Bar is ordinarily nothing more than a small blip on my radar. This time, however, I perceive it more like a resounding gong. Important decisions may be made that will affect us all. I encourage you to make your voices heard, whatever your opinions may be. s

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Redevelopment Dissolution: The End of an Era by Craig Labadie

or over 60 years, many California cities and a few counties utilized redevelopment agencies as their primary tool for facilitating revitalization of local communities. The basic theory of redevelopment was that blighted areas would not be able to attract private investment needed for economic development without governmental assistance. Hence the creation of redevelopment agencies, into which was funneled â&#x20AC;&#x153;tax increment,â&#x20AC;? or the increase in property tax revenue above a specified base year generated by properties within a defined redevelopment project area.

These agencies were given broad powers to assemble development sites by condemning private property, to issue bonds backed by tax increment revenue and to provide financial subsidies to developers to facilitate urban revitalization. A portion of tax increment revenues was set aside to fund affordable housing. Nearly all redevelopment agencies, over 400 in total, were governed by a board consisting of the county board of supervisors or city council which created the agency. Over the years, redevelopment was touted by its supporters as an effective economic development program. There are many examples of successful projects that were created using redevelopment funding and powers. On the other hand, redevelopment was also vilified due to real or perceived abuses, and it was the focal point of intergovernmental tension created by the diversion of property tax revenues that otherwise might have flowed to schools and other taxing entities. This longrunning policy debate recently came to an abrupt end when the state Legislature passed a law, later upheld by the courts, compelling the dissolution of all redevelopment agencies.

SEPTEMBER 2013

Much to the consternation of local governments, the Legislature had periodically responded to extreme budgetary pressures by passing laws which ordered cities and redevelopment agencies to transfer a portion of their property tax revenues to help fund school districts and thus ease pressure on the state budget. In an attempt to block further state takeaways of local tax revenues, the California Redevelopment Association and League of California Cities obtained passage of two voter initiatives amending the California Constitution. Proposition 1A, enacted in 2008, limited the Legislatureâ&#x20AC;&#x2122;s power to divert property tax, sales tax and other local funding sources from cities and counties. Proposition 22, enacted in 2010, prohibited further state raids of redevelopment funds. In 2011, the Legislature passed two companion bills which attempted to circumvent the restrictions of propositions 1A and 22. Assembly Bill 1X 26 required redevelopment agencies to cease their activities and wind up their affairs. Assembly Bill 1X 27, however, allowed

redevelopment agencies to continue to operate if the cities and counties that had created them “voluntarily” agreed to make payments into funds benefiting schools and special districts. Rather than capitulate by paying what were referred to as “ransom payments,” the California Redevelopment Association and League of California Cities challenged these laws by way of a writ filed with the California Supreme Court. Although the Supreme Court agreed to hear the case, its ultimate decision was the worst possible outcome for the petitioners. In California Redevelopment Association v. Matosantos (2011) 53 Cal.4th 231, the Supreme Court upheld AB 1X 26 and invalidated AB 1X 27. As to the first bill, the Supreme Court reasoned that because the Legislature was vested by the California Constitution with the power to create redevelopment agencies, it necessarily had the implied power to dissolve them as it deemed appropriate. Proposition 22 limited the Legislature’s fiscal powers over these agencies, ruled the court, but did not prevent dissolution. As to the second bill, the Supreme Court held that Proposition 22 expressly forbade the Legislature from requiring payments from redevelopment funds to benefit schools and special districts. The payments were not voluntary because they were a requirement for continued operation. AB 1X 27, therefore, was declared invalid. This was a Pyrrhic victory: Redevelopment agencies were not forced to pay a portion of their revenues to the state, but they were forced to dissolve and ultimately give up all their revenues not needed to satisfy existing financial obligations. Under the provisions of AB 1X 26, as modified by the Matosantos decision and by subsequent cleanup legislation (AB 1484), all the California redevelopment agencies ceased to exist by February 1, 2012. They were replaced by newly cre-

ated “successor agencies,” which were charged with duties such as preserving the assets of the former redevelopment agencies, continuing to pay valid obligations and ultimately winding down the affairs of these agencies. Most actions of successor agencies must be reviewed by “oversight boards,” consisting of representatives of local taxing entities, and ultimately by the State Department of Finance. For each six-month period, successor agencies must submit a schedule and receive approval for the payment of their financial obligations. Any remaining tax increment revenue is distributed to the other local taxing entities in a similar manner to property tax revenue. These fund transfers helped the state budget by alleviating its obligations for the funding of school districts. Under AB 1X 26 and AB 1484, collectively referred to as the redevelopment dissolution law, successor agencies have been required to con-

AND

duct audits of the general funds and affordable housing funds of the former redevelopment agencies. Any moneys not needed to pay obligations recognized by the state have been transmitted to county auditorcontrollers and then distributed to local taxing entities. The enforcement provisions of the redevelopment dissolution law authorize the Department of Finance to order offsets from sales and property tax revenues otherwise due to the cities and counties which created the redevelopment agencies as a remedy for nonpayment. After these audits are concluded and the required amounts are paid, successor agencies are entitled to receive “findings of completion” from the Department of Finance, allowing them to move into the next phase of the wind-down process, which will include disposition of real property assets held by the former redevelopment agencies. Not surprisingly, the redevelopment dissolution process has been

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

End of an Era, cont. from page 9 anything but smooth. Although in many instances the working relationships between successor agencies and oversight boards have been collaborative, there have been frequent differences of opinion between successor agencies and the Department of Finance regarding many issues. Topics of dispute include payments for financial obligations of former redevelopment agencies, “claw-backs” of assets transferred from the agencies to their host cities and counties and amounts due as a result of the audits. To date, over 120 lawsuits have been filed by successor agencies against the state. Under the redevelopment dissolution law, the venue for these cases is the Sacramento County Superior Court. In one of the more significant cases, the League of California Cities is seeking a de-

claratory judgment invalidating the statutory provisions authorizing offsets of sales and property tax revenues. The league has argued that these provisions are facially invalid as inconsistent with Propositions 1A and 22. In July, however, the trial judge issued a tentative decision declining to reach the merits of this issue on the ground that it will not be ripe for judicial review until after the penalties are actually imposed on a specific city or county. One of the casualties of the demise of redevelopment agencies has been funding for affordable housing projects. Tax increment revenues had long been the primary source of funding for local government subsidies to developers of low- and moderate-income housing projects. With existing fund balances swept away and the tap turned off for future revenues, logic might dictate that the state would revisit its legislative policies which require local governments to plan for meeting the need for housing affordable

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Instead, all indications are that the state will continue along the path of pressuring cities and counties to meet ambitious affordable housing goals, as defined by the state through local councils of governments, notwithstanding the lack of resources to achieve those goals. Although it will take years to resolve disputed issues regarding the wind-down of redevelopment in California, the process is well under way. In Sacramento, several bills are pending to create alternative tools for economic development, such as infrastructure financing districts. These tools may ultimately replace a small portion of the revenue diverted from redevelopment agencies and be of use in certain areas of the state, but it is clear that the age of redevelopment in California is over. s Craig Labadie is a sole practitioner who serves as legal counsel to 11 Redevelopment Dissolution Oversight boards located in Alameda, Contra Costa, and San Mateo counties and also as contract City Attorney for the City of Albany. He advises the Local Reuse Authority for the Concord Naval Weapons Station on the ongoing transition of that closed military base to civilian use. The views expressed in this article are solely those of the author.

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A Look at Discretionary Land Use Approvals

simple property alteration, such as the addition of a retaining wall, typically requires a building permit which must be issued upon proper application. By contrast, land use projects which may have greater impacts can be subject to discretionary review, culminating in project approval, conditional-approval or disapproval. The following are two attempts to gain discretionary approvals; one personifies ‘best practices,’ the other—not so much.

Homeowner Owen’s Application Owen lives in a subdivision in Too Cool Township. He wants to add a second story, which requires discretionary approval by the planning commission of a Conditional Use Permit (CUP). Owen declines to meet with staff. Rather, he hires an architect to prepare plans and to appear on Owen’s behalf at the

CUP hearing. When his neighbor knocks on Owen’s door to ask about the mailed hearing notice, Owen chooses not to answer. Staff is recommending project approval, but subject to numerous conditions. In response, Owen directs his architect to tell the planning commission that Owen cannot live with conditions requiring plan modifications. Meanwhile, Owen’s neighbor has gone to city hall to see the plans, and is concerned that the location of the windows on the second story will threaten his backyard privacy. Thinking it will be a waste of time to ask Owen to relocate the windows, the neighbor hires an urban planner, who will testify that the mass of the proposed addition resurrects serious second-story design issues, which were fully vetted during the original subdivision approval. He also rallies the neighborhood in opposition.

by David J. Larsen

Homebuilder Bill’s Application Bill also has a hearing scheduled before the commission. He is proposing an upscale 500-home subdivision in a pristine valley at the foot of Too Cool Mountain. By all accounts, there will be opposition to development of this countryside by environmentalists, neighbors and townsfolk alike. Subdivision, CUP and zone change approvals are sought. Prior to submitting plans, Bill meets with the mayor and the chair of the planning commission. Understanding that the legally mandated “general plan” serves as an entity’s blueprint for future development, Bill tells them that his project advances three important goals of the township’s general plan. First, Bill shows how the subdivision will conform to the existing topography through reduced site grading, then he explains how architecture will blend the housing with the natural surrounds. Finally he adds that water preservation will be addressed through efficient fixtures, gray water re-use and rainwater harvesting. The mayor points out that there is strong opposition to countryside development. Each of the meeting participants know that the town

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Discretionary Land Use, cont. from page 11

cannot deny all economic use of Bill’s property without violating the law, but that outright denial of the CUP, based on adequate findings, will likely withstand legal challenge. (The role of the city attorney in advising about these types of issues will be discussed in an upcoming article entitled: “So What is a City Attorney?”) Bill also meets with staff and various stake-holders including environmentalists, neighbors and townsfolk. Staff explains that while Bill’s proposal otherwise meets the requirement of general plan conformity, it may violate general plan policies concerning project density. Planning staff suggests fewer homes to mitigate visual impacts. Bill figures he can go as low as 425 homes and still make a profit.

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Environmentalists agree to withhold project opposition if Bill will deed property to a land trust to be preserved as open space in perpetuity. The neighbors agree to withhold opposition if Bill addresses ambient noise levels and traffic flow. Even some townsfolk soften their opposition. Bill hires a land use attorney to review his submittals, assure that CEQA (California Environmental Quality Act) compliance is adequate, review staff’s interpretation of the general plan and handle the land trust conveyance. The attorney will also make objections at the hearing, as necessary, to preserve Bill’s rights.

Planning Commission Hearings During Owen’s hearing, his architect explains that several conditions are unacceptable, and his neighbor’s urban planner raises concerns

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about the mass of the second story. This is followed by neighbors speaking in opposition. Ultimately, the planning commission denies Owen’s CUP application. Even though it was a potentially pivotal issue, the question of whether to change window locations to address privacy concerns was never even mentioned! Bill’s experience is a little different. Despite significant opposition from some, others speak in favor, citing Bill’s willingness to deed land in trust and to make project concessions. Although Bill represents himself as the applicant, his attorney preserves several issues for the record. Ultimately, deliberations focus on the need to mitigate the visual impacts of the project, resulting in a new condition limiting the number of homes to 450. The commission approves the subdivision and CUP. Approvals are final unless appealed to city council within 10 days. The commission also votes to recommend city council denial of the requested zone change. Bill will confer with his attorney concerning whether to pursue the zone change to allow all 500 homes, or to be content with building the smaller 450 unit project which has now been approved.

Three Lessons Learned Whatever the size of the land use project, the applicant will improve the chances of gaining discretionary approvals by doing the following: • Incorporating the entity’s own vision of its future development into the project. • Communicating with and seriously listening to stake-holders. • Being willing to compromise. While the land use approval process may evoke esoteric planning policies and centuries-old property law, it is not necessary to master these subjects to gain approvals.

There are professionals who understand how these policies and laws apply. Rather, one can improve the chances of obtaining discretionary approvals by heeding the lessons learned here, as a result of the differing approaches employed by homeowner Owen and homebuilder Bill. s Dave Larsen is a sole proprietor practicing as The Law Offices of David J. Larsen. His general practice emphasizes real estate, land use and municipal law. Education includes a BA and MA from Stanford University and a JD from McGeorge School of Law. See details at Dave’s website at www.dlarsenlaw.com.

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

The Supreme Court Answers “What’s a Taking?”

by Scott Jenny

im Sandefur, a lawyer for the Pacific Legal Foundation and author of “Property Rights in 21st Century America” and “The Right to Earn a Living,” recently told me something along the lines of: “All private property has already been taken by the government, and they will sell it back to you piecemeal by way of permits and fees.” Tim also includes the concept of dedication in his philosophy. Usually the issue of dedication arises when a developer applies to the local governing body for a development permit. If the proposed development is so great that the current infrastructure (streets, sidewalks, etc.) is insufficient to meet the needs of the proposed development, the governing body will require, as a condition of granting the permit, that the developer dedicate, or give, to the governing body enough land so that it can construct the necessary improvements.

SEPTEMBER 2013

For example, if the property is in an agricultural zone, serviced by one undivided road, and the property owner applies to build a WalMart on the site, the city might tell the developer that the road is not big enough to accommodate the WalMart. The city might inform the developer that it will have to build a divided four-lane fully improved road. Because the “cause” of the road is the proposed WalMart, the city will tell the developer that the gen-

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eral public should not have to pay for the land or improvements for the new road, and the city will require, as a condition of development, that the developer dedicate the width of the new road to the city. In addition, the city may require the developer to also pay for the street and improvements. The WalMart developer will then have to decide if it makes financial sense to dedicate the land and construct the improvements, which would The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall. Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, approximately one in ten families has a relative with this disease. Of the four million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

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become costs of development. Sometimes the property owner will challenge the dedication requirement. To prevail, there are tests that the city must meet, such as a reasonable relationship test. For example, in one of the most famous and instructive cases entitled Dolan v. City of Tigard (1994) 512 US 374, property owner Florence Dolan wanted to expand her hardware store and pave her parking lot. The city of Tigard told her it would only grant her building permit if she agreed to dedicate land that would be used for (1) a public greenway along a creek, and (2) for a pedestrian/bicycle pathway intended to relieve traffic congestion in the city’s central business district. Ms. Dolan refused to give her property to the city, on the grounds that the land dedication requirements were not related to the proposed development of her property and therefore the dedication demand was an uncompensated tak-

ing under the Fifth Amendment. She was essentially forced to choose between her building permit and her rights under the Fifth Amendment. The U.S. Supreme Court held that she was correct and that a hardware store is not the kind of business that causes a city to build either a greenbelt or a pedestrian/bicycle path. In another landmark case, Nollan v. California Coastal Commission, (1987) 483 U.S. 825, the Supreme Court ruled that forcing the owner to give the public access to the beach through the property was not a valid regulation of land use, but “an out-and-out plan of extortion.” Recently this issue arose again in a slightly different format, with Tim Sandefur’s partner arguing the case to the U.S. Supreme Court. In Koontz v. St. Johns River Water Management District, Coy Koontz, Sr., owned a 14.9 acre parcel. He ap-

plied to develop a 3.7-acre portion and contacted the required government agencies for permits. He offered to give away his rights for any future development of the remaining 11-acre southern section of his land by way of a conservation easement. The St. Johns River Water Management District said that was not enough land—they wanted more. They told him he could develop just one acre of his property and give the district a conservation easement to the remaining 13.9 acres. The district also gave an alternative: Koontz could develop his 3.7acre piece, and deed a conservation easement over the remainder to the district; but to sweeten the deal, he must agree to hire contractors to make improvements to districtowned land several miles away. He would have to pay to replace culverts on one piece of district property, or fill in ditches on another. This would have enhanced about

Will & Trust Litigation Securities Litigation Elder Abuse Litigation BARR & YOUNG AT TO R N EY S 318-C Diablo Road • Danville, CA 94526-3443 (925) 314-9999 www.BarrYoungLaw.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

The Supreme Court, cont. from page 15

50 acres of district property, all to the benefit of the district. The trial court held the exactions illegal as lacking a nexus and rough proportionality to the environmental impact of Koontz’ proposed project on his 3.7 acres. The Florida District Court affirmed, but the Florida State Supreme Court reversed. The FSSC held that this case was unlike Dolan because the district did not approve Koontz’ application on conditions that he agree to demands, but rather the district denied his application because Koontz refused to make concessions. They also distinguished a demand for an interest in property (a dedication requirement) and a demand for cash. Apparently, while it may be improper to demand land as a condition of development, a demand for cash does not trigger the same protections. Thus, the FSSC found that the Dolan Constitutional protections did not apply. The U.S. Supreme Court majority reversed and held that even the demand for money was a taking and must satisfy the rough proportionality nexus test. They saw no difference between “We will grant you a building permit only if you give us part of your land” and “We will grant you a building permit only if you give us money.” The first is an

easy “taking,” the taking of private property. The second, according to the Florida Supreme Court, did not include any taking of property. The U.S. Supreme Court held that the withholding of a development permit unless an unreasonable sum of money was paid was a denial of the right to use private property. Yet, four dissenting justices argued that none of Koontz’ property was ever taken. The dissenting justices were evidently concerned that the holding would mean sewage fees and liquor licenses would fall under constitutional scrutiny. This author has worked on cases where development permits for single-family residences were conditioned upon dedicating—giving away—the 20 front feet of the property and promising to improve (curb, gutters, sewer, etc.) the 20 feet when the city decides to improve that street, at the cost of hundreds of thousands of dollars. At least one east Contra Costa County city will not “allow” you to rent your home unless you pay for a permit and pay the city for an inspection. Another is the condition that the applicant promises, in writing, to vote a certain way on upcoming assessment districts. Vote as we say, or no permit. I personally believe that violates other constitutional rights regarding the First Amendment and voting rights, but that kind of fight is not financially feasible for some-

body trying to build a house on his or her property, and the city knows it. In Koontz, the U.S. Supreme Court discussed cases which “reflect an overarching principle, known as the unconstitutional conditions doctrine that vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” They held that “…land-use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take.” They stated that the “…government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation.” They said “Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them.” The rationale of Koontz is sound and it is a good read. Perhaps it sets the rules going forward. Unfortunately, the practical use may be somewhat limited. The family who owns property zoned single-family residence who are forced to pay an exorbitant fee for the “right” to develop their property consistent with the legal zoning will find little help with the cost of their legal bills and the uncertainty of the outcome. s Scott Jenny is an attorney at Jenny & Jenny, a law firm with a focus on real estate-related concerns. He has tried 18 eminent domain jury trials, three eminent domain court trials, has settled many more, and for the past 20 years his practice has been primarily related to eminent domain matters. His firm only represents private property owners. Jenny was named a super lawyer in Northern California in the eminent domain field for 2012- 2013.

SEPTEMBER 2013

Tax & Estate Attorneys Individual & Business Tax Issues Tax Preparation • Tax Planning • Tax Controversy Sophisticated Estate Planning • Estate Administration Trust & Estate Litigation • Probate

YOUNGMAN & ERICSSON 1981 N. Broadway, Suite 300 | Walnut Creek, CA 94596 | (925) 930-6000 www.youngman.com

Walter C. Youngman, Jr. Mark S. Ericsson Dani Altes, Paralegal

Chastity A. Schults, Partner Mayra Aviles, Paralegal

Morrill Law Firm 1333 N. California Blvd., Ste 620 • Walnut Creek, CA 94596 Phone 925.322.8615 • Fax 925.357.3151

Will & Trust Litigation Financial Elder Abuse Conservatorships General Civil Litigation Probate & Civil Appeals Mediation Joseph Morrill Andrew R. Verriere

Nicole Morrill Paralegal

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Added Incentives for 1031s by G. Scott Haislet

eal estate investors’ incentives to use 1031 exchanges have increased in recent months:

• Effective January 1, 2013, federal capital gain rate has increased in some cases to 20 percent (from 15 percent previously).

• Effective January 1, 2013, IRC §1411 tax on “net investment income” (including gain from the sale of investment real property) levies a 3.8 percent tax (sometimes) on all or some of the gain.

Example 2: Relinquished property sells for $100, loan payoff of $70 and cash proceeds $30. Replacement property purchase price is $30, with the $30 as full payment. This would trigger $70 boot (net debt forgiveness is considered receipt of boot).

• Implemented retroactively starting January 1, 2012, Prop 30 increased the top California individual income rate to 13.3 percent.

Exchange math is called the “napkin test.” According to legend, a famous local attorney explained 1031 math to a colleague in a tavern on a cocktail napkin.

• Gains in value.

Fractional Property Interests

• In addition, sellers face a 25 percent federal tax on depreciation recapture on the sale of investment real estate.

IRC §1031(a)(2)(D) provides that “partnership (or LLC) interests” are not eligible for 1031 exchange. On the other hand, §1031(a)(2) provides an exception for interests of a partnership (or LLC) with a valid §761(a) election, a so-called “TIC” interest.

Accordingly, 1031 exchange activity appears to be picking up according to anecdotal evidence. A quick refresher: IRC §1031(a)(1) requires three elements for a valid exchange: (1) properties must be like kind; (2) properties must be “exchanged;” and (3) properties must be “held for” investment or business. Avoiding receipt of “boot” (non-like-kind property, IRC §1031(b)) is also important. Boot received is generally taxable gain, even though the 1031 may otherwise be flawless. Also, 1031 does not apply to certain assets, e.g., stocks, bonds, partnership interests.1 “Like kind” for real estate is easily met, e.g., commercial for residential, raw land for improvement property, certain leases for fee interest, etc. An exchange occurs by following long-standing regulations using qualified intermediaries (AKA 1031 exchange “accommodator”) and an “exchange agreement.” An exchange occurs even when an investor sells on date zero, identifies replacement property no later than date 45, and closes on the replacement property no later than date 180.2 Typically, the held for business or investment requirement and IRC §1031(a)(2) ineligible assets present the biggest challenge—you don’t get 1031 treatment if either the relinquished or replacement property is not held for investment or is ineligible for 1031 treatment. One last 1031 basic: To avoid boot generally, (1) the replacement property must be priced higher than relinquished property (buy equal price or higher), and (2) all the equity must be reinvested.

Example 1: Relinquished property sells for $100, loan payoff of $70 and cash proceeds $30. Replacement property must be $100 or higher price and the $30 must be included as down payment.

SEPTEMBER 2013

Therefore, an LLC interest is not 1031-eligible. Thus, an LLC member cannot sell her share then go buy her separate 1031 replacement property. That has encouraged many LLCs “drop-and-swap” (i.e., dissolve the LLC, then each investor owns a TIC interest of the former LLC property, thus allowing each investor to do her own 1031). Caution! A §761(a) election may not be valid for a variety of reasons, notably that a drop-and-swap occurs shortly before the sale of the property (there are many other reasons as well).3 Investors should not simply drop-and-swap without evaluating the great (and often overlooked) risk. The drop typically does not cause a tax problem—the issue is whether the individual investor’s interest is “held for” investment or whether the interest is not ineligible under IRC §1031(a)(2)(D). The Franchise Tax Board (FTB) has taken a particular interest in 1031s, particularly involving TIC interests or LLCs. FTB has made good on its promise to audit the 1031s of partial interests.4

Out-of-State Exchanges While many clients threaten to leave California due to increasing taxes (and take their real estate investments with them through 1031), the FTB has a new tool to chase tax deferred gains into the future. California Revenue & Taxation Code §§18032 and 24953 require an annual information return for 1031 exchange replacement properties located outside of

California for non-resident taxpayers who complete a 1031 exchange after 2013. Example: Joe sells Los Angeles commercial real estate, closing on January 2, 2014, and hires Scott as his qualified intermediary. Joe then buys a replacement property in Reno, Nevada, purchased timely and properly as a 1031 exchange of the Los Angeles property. Joe pays no California tax on the exchange, but Joe must file an information report with FTB for 2014 (year of exchange) and each year thereafter until taxable disposition of Reno. If Joe does a later 1031 exchange (e.g., sells Reno and buys a Florida property), the California deferred gain will continue to be reported on subsequent information reports. The law does not cause taxable gain on exchanges for properties outside of California; it merely helps the FTB track the deferred gain of such out-of-state properties until sold. The penalty for failure to file the return is that FTB will be entitled to estimate the income as if the replacement property had been sold, and assess tax on that estimate (i.e., FTB will assume the property was sold).

(California has conformed to the federal procedure). A reverse exchange avoids the identification challenge and urgency—if the investor has already bought the replacement property, identification has occurred before relinquished property is sold. An improvement exchange occurs when the investor hires the accommodator to buy and hold the replacement property. During the 180-day exchange period, the investor may add improvements to the replacement property. The cost of such improvements are included in the exchange (example: investor sells relinquished property for $100, accommodator buys replacement property for $80, then accommodator timely adds $20 of improvements to avoid boot). An improvement exchange permits the investor to avoid boot by adding purchase cost. Also, in some situations, the investor avoids financing the property twice (as the construction funds come from the

equity of the relinquished property rather than a post-closing improvement loan). An investor can even consider a “reverse improvement” exchange. The 45-day identification requirement and 180-day exchange period rules apply to reverse and improvement exchanges. s 1

IRC §1031(a)(2).

IRC §1031(a)(3), “delayed” exchange.

See IRS Revenue Procedure 2002-22 and Reg. §1.761-2. 4

See FTB Tax News, November 2007.

See IRS Revenue Procedure 2000-37.

G. Scott Haislet, CPA and tax attorney (certified specialist) in Lafayette, acts as 1031 exchange intermediary. His practice entails real estate matters, estate planning, IRS representation, tax returns, and other tax matters. He can be reached at (925) 283-1031 or scott@ goscott.com.

It should not surprise you that FTB maintains offices in major cities in other states, and uses those local resources to pursue collections against former California investors.

Other Trends Parking arrangements have increased in popularity since the real estate recovery.5 Parking arrangements provide for “reverse” exchanges and “improvement” exchanges. A reverse exchange occurs when the investor buys the replacement property first and sells the relinquished property later. In a reverse exchange, the investor hires the accommodator to “park” either the relinquished property or the replacement property under an arrangement that IRS has validated

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Real Estate Law Section MCLE Breakfast June 21, 2013

Harold Justman, Esq.

SEPTEMBER 2013

All S

c e

’ s n o ti

Carolyn Cain and Tracy Lindsey

hosted by the Women’s Section June 27, 2013

Natasha Chee, Doug Matheson, Kosta Demiris and Mary Grace Guzman

Adam Carlson, Georgelle Heintel and Ken Strongman

Wendy McGuire Coats and Dawnell Blaylock

Tracy Regli and friends

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Family Law

ec t ion

MCLE Luncheon July 10, 2013

Paul Bonnar

Summer Fling August 9, 2013

Nancy Thomas and Warren Siegel Hon. Joyce Cram (Ret.), Hon. Terrence Bruiniers, Lee Pearce and Comm. Lowell Richards

SEPTEMBER 2013

Contra Costa County Bar Association presents: TO

GALA

U YO S K N OR A S N PLATINUM TH PO S R Archer Norris OU

Barr & Young Estate Planning & Probate Section Hartog & Baer

GOLD

Acuña, Regli & Klein Bramson, Plutzik, Mahler & Birkhaeuser, LLP Buchman Provine Brothers Smith, LLP Casper, Meadows, Schwartz & Cook Wells Fargo Private Bank Women’s Section SILVER

IN SUPPORT OF

CONTRA COSTA SENIOR LEGAL SERVICES

Bowles & Verna Brown Church & Gee, LLP Frankel Goldware Ferber Gagen, McCoy, McMahon, Koss, Markowitz & Raines Horner & Singer, LLP JAMS Littler Mendelson McNamara, Ney, Beatty, Slattery, Borges & Ambacher Miller Starr Regalia The Mullin Law Firm Steele George Schofield & Ramos, LLP Vasquez, Benisek & Lindgren

Thursday, September 19, 2013 Lafayette Park Hotel 6 - 8 pm MASTER OF CEREMONIES

William E. Gagen HONORING

Don Green (Ret.) Contra Costa Superior Court Probate Commissioner

TICKETS

Single Ticket Price: $75 Individual Sponsor: $100* Mr./Ms./Mrs.:

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Will Attend. Please reserve (number of) tickets at $75 per person; $50 for Barristers & Law Student Members. (Please list additional guest names on the back of this card.)

by September 12, 2013 (Please complete the form to the right and mail.)

Will Attend as an Individual Sponsor. Please reserve (number of) tickets at $100 per person. (Purchase 2 or more to be listed on the program. Please list additional guest names on the back of this card.)

*Those who purchase two or more tickets at $100 each will be listed on the program. Call (925) 370-2548 for sponsorship information.

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RSVP to: CCCBA | 2300 Clayton Rd., Ste. 250 | Concord, CA 94520 For more information call (925) 370-2548 | thurley@cccba.org Your contributions are tax-deductible | Tax ID #94-6070996

RSVP by 9/12/13

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New Requirements on Accessibility and Energy Use Disclosures by Robert W. Richardson

Mandatory Accessibility Lease Disclosure

n July 1, 2013, California Civil Code §1938 went into effect. It requires all commercial leases on or after that date to disclose whether the leased premises have been inspected by a Certified Access Specialist (CASp), and if inspected, whether the premises have been determined to meet all applicable accessibility requirements under Civil Code §55.53. The new law does not require a landlord to have the CASp inspection, but Civil Code §55.54 provides certain benefits in the event of a disability access lawsuit if the premises has undergone a CASp inspection. Under Civil Code §55.54, a landlord of a CASp-inspected premises can request a 90-day stay of any accessibility lawsuit related to the premises. Any business that has received this inspection will have 60 days to remedy a disability access violation and the statutory damages for such a violation may be reduced from $4,000 to $1,000. Civil Code §1938 does not specify any consequences or penalties if a commercial lease executed on or after July 1, 2013, does not contain the mandatory disclosure, but it is not difficult to contemplate that tenants might use the lack of a

SEPTEMBER 2013

mandatory disclosure to attempt to place sole responsibility on the landlord for any disability access violations or contend that the landlord must indemnify the tenant for such a violation. Landlords should also consider the possibility that a tenant may seek to terminate or rescind the lease on the grounds that it does not contain the mandatory disclosure. Commercial landlords must now decide whether to have a CASp inspection of the premises and disclose the results in the lease or to disclose in the lease that no CASp inspection has been undertaken. Civil Code §1938 does not require commercial landlords to have CASp inspections. The statute merely requires that commercial landlords disclose in their leases executed on or after July 1, 2013, whether a CASp inspection has occurred, and, if so, whether the premises meets the accessibility standards.

Mandatory Energy Use Disclosures for Non-Residential Buildings Effective July 1, 2013, owners of non-residential buildings that contain a total gross floor area of more than 50,000 square feet are required to make new energy use disclosures

under California Public Resources Code §25402.10. The disclosure requirements provide that any owner selling, leasing or financing a building must obtain and disclose, before the sale, lease or financing of the building, the energy use data for the most recent 12 months, including the building’s operating characteristics and the Energy-Star® energy performance score for the building. The disclosure requirements will extend to buildings in excess of 10,000 square feet on January 1, 2014, and to buildings in excess of 5,000 square feet on July 1, 2014. The disclosure requirements include required documents and forms available on the United States EPA’s Energy-Star® website (www.energystar.gov) and include a disclosure summary sheet, statement of energy performance and data checklist and facility summary. Compliance with these requirements requires a commercial property owner to register with the United States EPA’s Energy-Star® Portfolio Management Program at least 30 days before a required disclosure. The statute requires the disclosure to be made to a prospective purchaser no later than 24 hours before execution of the purchase agreement, to a prospective tenant no later than 24 hours before execution of the lease and to

a prospective lender no later than the submittal of the loan application. No disclosure is required to a tenant leasing less than the entire building (currently 50,000 square feet), but scheduled to apply to smaller buildings as noted above.

panies will not release energy use data to the building owner without the tenant’s consent if the tenant is separately metered for utilities.

The disclosure statute and related regulations do not specify any consequences or penalties for the failure to provide the disclosures, but it is not difficult to contemplate that non-compliance may allow purchasers, tenants or lenders to terminate or rescind the transaction on the grounds that the mandatory disclosure was not made.

This statute does allow a building owner to use an approximation of the energy use information if the owner has made a reasonable effort to ascertain the missing information. The owner is required to identify the information as an approximation. The approximation must be both reasonable and based on the best information available. The statute states that the ability to use an approximation may not be used for the purpose of circumventing the disclosures it mandates. s

Commercial landlords must now be sure to include in all lease forms provisions that allow the landlord to obtain the energy use information from tenants or from the utility companies providing direct service to tenants. Commercial landlords must keep in mind that utility com-

Robert W. Richardson is the founder and principal attorney of Richardson Law Firm in Walnut Creek. He represents institutional investor commercial property owners and managers in a broad

range of transactions involving office, industrial and retail buildings. He has more than 30 years of experience in commercial lease matters, including lease negotiation and dispute resolution for both landlords and tenants. Richardson is a member and past president of the CCCBA’s Real Estate Section.

— WANTED — Will/Estate Contests Conservatorships

You handle the estate, we do the contest. Cases, except conservatorships, often handled on a contingent fee basis, but can be hourly. Referral fee where appropriate. Pedder, Hesseltine, Walker & Toth, LLP oldest partnership in Contra Costa County (since 1955)

p 925.283-6816 • f 925.283-3683 3445 Golden Gate Way, P.O. Box 479 Lafayette, CA 94549-0479 AV Martindale-Hubbell

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ethics corner

Real Estate Ethics by Carol M. Langford

eal estate transactions are fraught with ethical conundrums. That is mainly because the parties to a transaction are often savvy about the law and what transactional documents they need prepared, so they insist on representing themselves. Or if they have a lawyer, they tell you not to speak with their attorney in order to save money. To complicate matters, the client might have a silent joint venture partner who is relying on your good work on the deal. You have to know going in to the representation that real estate law is the highest legal malpractice claim area right now. Once the recession hit, investors who lost their money found new and creative ways to get at their lawyer’s insurance policy to cover their losses. That has not abated despite the economy improving and the stock market reaching unprecedented heights. So what should a real estate lawyer watch out for? First, if a client has not solicited money from investors in a way that fully complies with the law, do not prepare the papers for the transaction. You would be surprised how many lawyers, in a misguided attempt to bring in business, take on somewhat shady clients. I say “somewhat shady” because the client might have done something he contends is arguably legal. For example, a promoter posts a billboard ad to attract investors that technically violates SEC laws, but the investors are sophisticated and likely understand what they are investing in. The lawyer drafts documents that explain that the deal “might” violate SEC laws, and has the investors waive any claim against the promoter. But what happens when the investors lose their money? They sue the lawyer, because by then the promoter has long ago declared bankruptcy.

SEPTEMBER 2013

Second, I would warn lawyers to be careful about seizing on opposing counsel’s apparent material errors in contract language while drafting the transaction documents. COPRAC ethics opinion 11-0002 holds that where an attorney has made a material change to contract language in such a manner that his conduct constitutes deceit, active concealment or fraud, the failure of the attorney to alert opposing counsel of the change is a violation of his or her ethical duties. An example would be an intentional or unintentional failure to redline a change and not inform opposing counsel of it. Last, but certainly not least, be wary of client/buyers who ask you to represent them and others to the transaction without a waiver, even if the others agree to sign whatever form of purchase agreement you negotiate for the buyer. I can’t begin to tell you have many times I have gotten calls about deals gone sour where the lawyer is being sued for representing more than one person in a matter with no Rule 3-310 conflicts waiver. It is true that clients are busy and don’t want to sign waivers, but you have the exposure if anything—anything—goes wrong. All this being said, real estate prices are improving and I predict some boom years for the practice. It is about time! But don’t forget that you are a lawyer first with ethical obligations, and a scrivener second. s Carol M. Langford is a lawyer in Walnut Creek and an adjunct professor of ethics at U.C. Berkeley Boalt Hall School of Law. Her practice emphasizes attorney conduct and State Bar defense matters.

ConServAtorShiPS ProBAteS CriMinAl DefenSe

Thank you to our

Free Legal Workshop Volunteers!

The CCCBA offers many different free legal workshops to the public every month, everything from bankruptcy to family law, wills & trusts to immigration and more. We are only able to offer this wonderful public service because of the many attorney volunteers who generously give their time and talent to the residents of Contra Costa. We would like to express our gratitude to these CCCBA member volunteers:

David B. Pastor

CCCBA MeMBer SinCe 1977

• Free Consultation •

Law Offices of

DAviD B. PAStor

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• Jonathan Black • Bill Drysdale • Lisa Edgar-Dickman

Attention: Lawyers with professional liability coverage

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two vALuAbLe new benefits Are now pArt of tHis industryLeAding CoverAge: • Meet your MCLE requirements—for free! Upon your effective date, you can complete all California Minimum Continuing Legal Education (MCLE) requirements—up to 25 hours every three years—at no cost. Choose from 650 hours of quality, online MCLE courses. • New Data Breach Expenses Endorsement. Data breaches can lead to big expenses for the businesses that maintain the information. Protect your practice with up to $25,000 in data breach coverage. There’s NO separate premium charge for this extra coverage. These new member benefits could amount to more than $26,000 in value. And you don’t pay a penny more for your coverage!

Don’t have this coverage? New policyholders can also get these great new benefits at no additional cost. To learn more about switching your current professional liability coverage to the State Bar of California-sponsored program, visit... personal-plans.com/calbar or call 1-800-339-9122.

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Law Libraries

An Attorneyâ&#x20AC;&#x2122;s Best Resource by Carey Rowan

pen to everyone and with a wealth of resources, the county law libraries in the Bay Area have much to offer busy trial lawyers and their staffs. Among those resources are professional librarians who can help you find answers to legal research questions, locate obscure case law or search for jury verdicts. The Contra Costa County Law Library has branches in Martinez (main), Richmond and Pittsburg. Call 925-646-2783, or visit www. cccpllib.org for additional information. The Alameda County Law Library has branches in Oakland (main) and Hayward. For information on location, hours and parking, visit www.acgov.org/law or call 510-208-4832. Conveniently located near the courts, both libraries have conference rooms available for rent. County law libraries can save you time and money with staff trained to help you choose the best databases or books at no cost to youâ&#x20AC;&#x201C;and without fear of increasing the renewal price of your premium database. Premium databases include California Supreme Court and Court of Appeals briefs, CEB OnLaw (all CEB materials) Hein

SEPTEMBER 2013

OnLine (CFR, Fed Reg and law journals), Lexis, VerdictSearch, Westlaw and WestlawNext. By providing free access to legal information and expert research advice from professional law librarians, county law libraries can help level the playing field for lawyers, whether they work in large firms or as sole practitioners. Read future issues of the magazine as we explore more fully how using county law libraries can save you time and money. Meanwhile, please contact Carey Rowan at 925-646-2783 or Carey.Rowan@ll.cccounty .us for additional information about the Contra Costa

County Law Library, or Mark Estes at 510-272-6481 or director.lawlib@ acgov.org with questions about the Alameda County Law Library. CCCBA Members: Please note that Solo Practice Section members are entitled to use JFK University’s Law Library at no cost. It is located on the first floor at 100 Ellinwood Way in Pleasant Hill. Call 925-9693120 for more information. s

Medical Benefit Option Updates The Contra Costa County Bar Association has partnered with insurance brokers Myers-Stevens-Mello & Co. Inc. (MSM) to assist its members in navigating the upcoming changes in the insurance marketplace. MSM is available to members to answer questions, quote options and help members choose a plan that will fit their needs, both for small groups and individuals. NEW Important Dates to Remember: • January 1, 2014: The Health Care Law is fully implemented for Individuals and Small Groups (under 50). • January 1, 2015: Open Enrollment 2015 begins/ Health Care Law is fully implemented for Large Groups (50+). For more information, please contact Rich Suess with MSM at 877-741-4843 x 311 or 510894- 4295 x 311, or visit the website at www.insurancemsm. com.

Northern California Mediator / Arbitrator 18 years as Mediator 27 years as Arbitrator 35 years in Civil Practice

Roger F. Allen 510.832-7770 Ericksen, Arbuthnot 155 Grand Avenue, Suite 1050 Oakland, CA 94612

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• Training includes Mediation Course at Pepperdine University 1995 • Serving on Kaiser Medical Malpractice Neutral Arbitrators Panel • Settlement Commissioner, Alameda and Contra Costa Counties • Experienced in all areas of Tort Litigation, including injury, property damage, fire loss, malpractice, construction defect

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

SEPTEMBER 2013

BUILD YOUR PRACTICE

with our Lawyer Referral & Information Service (LRIS) HERE’S A CLIENT COMMENT: I wish to express my appreciation of your referral to one Andrew W. “Shalaby, Attorney at Law, whose services I recently had need of. I just want to convey how professional, truly engaged and helpful he was in providing guidance regarding the matter we discussed. He is a credit to his profession. Please know how much I would look forward to the privilege of his services again, should the need arise.

“

For more info on how to join LRIS, please contact

Barbara Arsedo

at (925) 370-2544 or barsedo@cccba.org.

What You Missed in the August Online Issue Women in Law edition Features: • Women and the Judiciary - Hon. Ellen James (Ret.) • A Personal Reflection: Gender Issues and Women in Law - Mika Domingo-Spagna • Making Rain! - Wendy McGuire Coats • California Women Lawyers: Strong Roots Promise a Bright Future - Kelly J. Robbins • Women in the Workforce - Marta R. Vanegas • Supreme Court Justices Are People Too: A Review of Sonia Sotomayor’s “My Beloved World” - Amanda Bevins

Spotlight: • Conflicts in Courtroom Couture - Mary P. Carey

Columns:

To read these and other articles, go online to cclawyer.cccba.org.

• Summer and Civility - Jay Chafetz • Inside Column: I Think I Can - Hon. Diana Becton, Guest Editor

News & Updates: • Working Effectively with Interpreters - Magda Lopez • Women’s Section Power Lunch [photos]

More: • Ethics Corner - Carol M. Langford • Coffee Talk: What are the pros and cons of working from home?

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

COFFEETALK!

What signs of real estate recovery are you seeing?

I see much of the venture capital and associated development plans (that suddenly went off the table during the recession) back on the table. I also see a ton of private construction work underway both residential and commercial, after years of limited public projects.

Every client wants something done about their community property house. Half of them want it sold ASAP, and the other half disappear, hoping to stall the case long enough for the bubble to burst again.

Ira James Harris, Esq.

Dubrovsky Law

Forty percent price increases on some single-family homes in the Tri-Valley within the last year. Investors buying $600-$700,000 homes with cash.

Real Estate Recovery is apparent when: Sale prices are escalating; Multiple offers are again being made; â&#x20AC;&#x153;Choose meâ&#x20AC;? letters again accompany offers; Appraisals are higher than the amount of offers; Contingencies are minimized or avoided altogether.

Gary Vadim Dubrovsky

Law Office of Ira James Harris

Jennifer L. Sommer

Law Offices of Mark R. Mittelman P.C.

Joel Zebrack

SEPTEMBER 2013

19th Annual

MCLE Spectacular!

Friday, November 22, 2013 Walnut Creek Marriott Breakfast Kickoff Speaker

EVENT SPONSOR JAMS

JAYNE KIM

Chief Trial Counsel, State Bar of California Staying Out of Hot Water - Legal Ethics

PREMIUM SPONSORS The LaMusga Company Scott Valley Bank Thomson Reuters Westlaw

Luncheon Speaker

Dean, UC Irvine School of Law Leading Decisions of the U.S. Supreme Court Afternoon Plenary Session Speaker

DAVID MANN

Consultant, The Other Bar Addressing Substance Abuse in the Legal Profession

SPONSORS

SPEAKERS

PROFESSOR ERWIN CHEMERINSKY

SPONSORS The ACE Fiduciary Group ADR Services, Inc. Certified Reporting Services JFK University College of Law LexisNexis

A Preview of Added Seminars: Bankruptcy & Litigation Sections

Lawsuit Possessed: Coping with Bankruptcy’s Spell on State Court Litigation

Diversity Section

Diversity’s Positive Impact on Your Law Firm’s Bottom Line

Ethics and General MCLE Credits

JAMS, The Resolution Experts

Consider the Ethics: Real World Dilemmas in Mediation

Pro Bono Section

Immigration Reform: What’s Changed, What Hasn’t, and What You Should Be Aware of

Ethics MCLE Credit

General MCLE Credit

rA Look Fo the e in Brochur in the th Mail Wi ew Next F Weeks!

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

CALENDAR UPCOMING EVENTS | OVERVIEW September 11 | Family Law Section

Imputation of Income in Setting Support more details on page 35

October 8 | Alternative Dispute Resolution Section

What Murderers Can Teach Us About Mediation more details on page 36

September 11 | Estate Planning and Tax Sections

October 12-19 | CCCBA

This Just In! Updated Guide to Using Probate Referees; What you Need to Know

2013 CCCBA Mexico Seminar

more details on page 35 September 12 | Litigation Section

Keys to the Vault: Essential Strategies for Optimizing InsuranceFunded Settlements From Both Plaintiff & Defense Perspectives more details on page 35 September 17 | CCCBA

The New Healthcare Legislation - Part 6 of the 2013 Law Practice Management Series more details on page 35 September 18 | Employment Law Section

Evaluating Wage and Hour Claim as a Potential Class Action: Plaintiff and Defense Perspective more details on page 35 September 19 | CCCBA

Bar Fund Gala Reception in Support of Contra Costa Senior Legal Services more details on page 23 September 20 | Real Estate Section

Recent Developments and Tried and True Tricks Under the Subdivision Map Act more details on page 35 September 24 | Business Law & Corporate Counsel Section

The Fed Said What? more details on page 36 October 3 | Women’s Section

Cloudy to Clear: Ethics and Practicing Law in the Age of Cloud Computing more details on page 36

more details on page 36 October 16 | Criminal Law and Intellectual Property Sections

Cybercrime & Cyber Civil Liability more details on page 36 October 16 | Employment Law Section

Workplace Investigations: New Developments and Best Practices more details on page 37 October 17 | CCCBA

Get to Know Your Local Judges more details on page 37 October 25 | Family Law Section

QDRO Basics - Types of Pensions, When a Joinder is Required and QDROs more details on page 37 October 29 | CCCBA

Octoberfest Interprofessional Networking Mixer more details on page 37 November 2 | JFK University

2013 Kennedy Laureate Dinner more details on page 37 November 7 | Women’s Section

Women’s Section Scholarship Dinner more details on page 37 November 22 | CCCBA

19th Annual MCLE Spectacular more details on page 33

October 5 | Family Law Section

Minor’s Counsel Training Program more details on page 36

SEPTEMBER 2013

For up-to-date information on programs, please visit www.cccba.org/attorney/calendar and/or subscribe to our weekly “Events & News” email. To subscribe, text CCCBA to 22828.

September 11 | Family Law Section

Imputation of Income in Setting Support Speakers: Comm. Josanna Berkow (Ret.) Comm. Anita Santos Joseph Wolch Time: 12 pm – 1:15 pm Location: Contra Costa Country Club 801 Golf Club Rd., Pleasant Hill MCLE: 1 hour family law specialization credit Cost: $50 for section and law student members, $75 for CCCBA members, $100 for non-members Registration: Go to the Family Law website at www.familylawsectioncontracosta.org More Info: Contact Therese Bruce at (925) 930-6789

September 11 | Estate Planning & Probate and Tax Sections

This Just In! Updated Guide to Using Probate Referees; What you Need to Know Join Contra Costa County Probate Referees as they review the 2013 Guide to Using Probate Referees and discuss how to ensure the efficient and accurate appraisal of estate assets. The new guide will be distributed (a handy reference). This is a Brown bag lunch. Limited seating, please sign up early. Speakers: David Elefant, Franza Giffen Mike Herwood, Nick Tarlson and Theresa Taylor Time: 12 pm – 1:30 pm Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Road, Concord MCLE: 1 hour EP/T & Probate credit Cost: free for section members, $5 for CCCBA members, $10 for non-members Registration: Online at www.cccba.org/attorney/calendar

September 12 | Litigation Section

Keys to the Vault - Essential Strategies for Optimizing InsuranceFunded Settlements From Both the Plaintiff and Defense Perspectives Lunch is included. Speakers: Theresa Baumgartner, Law Offices of Theresa A Baumgartner Robert Sallander, Greenan, Peffer, Sallander & Lally LLP Marissa Nebenszhl Sinha, McDow- ell Shaw Colman & Garcia Time: 12 pm – 1:30 pm Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Road, Concord MCLE: 1 hour general credit Cost: $15 for section and law student members, $25 for CCCBA members, $35 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

September 17 | CCCBA

September 18 | Employment Law Section

September 20 | Real Estate Section

The New Healthcare Legislation Part 6 of the Law Practice Management Series

Evaluating Wage and Hour Claim as a Potential Class Action: Plaintiff and Defense Perspective

Recent Developments and Tried and True Tricks under the Subdivision Map Act

2013 is about preparing for health care reforms that take effect in 2014. How will this impact the small employer (under 50 employees). What do you need to know for your practice, as an employer and what can you tell clients? The market is changing, are you ready?

Speakers: Kevin R. Allen, Esq., Special Counsel, Velton Zegelman PC Francis J. Ortman, III, Esq., Seyfarth Shaw LLP

Speaker: Michael Durkee

Time: 11:45 am – 1 pm

MCLE: 1 hour general credit

Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek

Cost: Free for section members, $5 for law student members, $15 for CCCBA members, $35 for non-members

Speakers: Colleen Callahan, CLU, CASL, LUTCF Maggie Grover Time: 4:30 pm – 6 pm Location: John F. Kennedy University 100 Ellinwood Way, Room S312, Pleasant Hill

MCLE: 1 hour general credit Cost: $40 for section members, $35 for law student members, $45 for CCCBA members, $50 for non-members

MCLE: 1.5 hours general credit

Registration: Online at www.cccba.org/attorney/calendar

Cost: $10 for law student members, $20 for CCCBA members, $30 for non-members

More Info: Contact Theresa Hurley at (925) 370-2548

Time: 7:30 am – 9 am Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek

Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

September 24 | Business Law & Corporate Counsel Section

The Fed Said What? This program will discuss the regulatory and legislative issues that have an effect on trends in U.S. and global economies, corporate America, and the financial markets. Topics will include the recent Federal Reserve policy statements that rocked the investment markets, the impact of stock buybacks and tax credits on corporate earnings, and what we can learn from the legal kind of insider trading. Speaker: Perry Novak, JD, Senior Vice Presi- dent, UBS Wealth Management Time: 7:30 am – 9 am Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general credit Cost: $25 for section members, $20 for law student members, $30 for CCCBA members, $35 for non-members

October 3 | Women’s Section

October 5 | Family Law Section

Cloudy to Clear: Ethics and Practicing Law in the Age of Cloud Computing

Minor’s Counsel Training Program

Registration and networking reception starts at 11 am, MCLE program starts at noon. Speaker: Eliza Rodrigues, Associate General Counsel & Ethics Counsel, Sedgwick LLP Time: 11 am – 1 pm Location: Modern China Cafe 1525 N. Main Street, Walnut Creek MCLE: 1 hour legal ethics credit Cost: $25 for section members, free for judges, $30 for CCCBA members, $35 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

Continental breakfast and lunch provided. The charge of $75 is based on an agreement that attendees will accept at least two court-appointed Minor’s Counsel cases. Speakers: Hon. Jill Fannin Rhonda Barovsky, LCSW, BCD Time: 9 am – 4:15 pm Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Road, Concord MCLE: 6 hours family law specialization credit Cost: $75 for section and law student members, $125 for CCCBA members, $150 for non-members Registration: Go to the Family Law website at www.familylawsectioncontracosta.org More Info: Contact Therese Bruce at (925) 930-6789

Registration: Online at www.cccba.org/attorney/calendar October 8 | Alternative Dispute Resolution Section

What Murderers Can Teach Us About Mediation Douglas E. Noll, JD, MA, is a full time mediator, specializing in difficult, complex, and intractable conflicts. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. Along with his colleague Laurel Kaufer, Doug was honored by California Lawyer Magazine as California Attorneys of the Year in 2012 for their pro bono Prison of Peace project. Time: 12 pm – 1:30 pm Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general credit Cost: $35 for section and law student members, $40 for CCCBA members, $45 for non-members Registration: Online at www.cccba.org/attorney/calendar 36

SEPTEMBER 2013

October 12-19 | CCCBA

2013 CCCBA Mexico Seminar Attorneys, judges and families are invited to join the Contra Costa County Bar Association for the 2013 Mexico MCLE trip. Playacar is located in the Mexican Riviera, just one mile from picturesque Playa del Carmen and has one of the most beautiful beaches in the world. Riu Palace Mexico is an all-inclusive, four-star hotel offering delicious food, beverages, nightly live entertainment and optional excursions. Direct flights from SFO to Cancun are available. Significant others, family and friends are encouraged to attend.

October 16 | Criminal Law and Intellectual Property Sections

Cybercrime & Cyber Civil Liability Pizza, salad and soft drinks will be served. All CCCBA members who attend this program can receive a FREE membership to the IP section for the rest of 2013. Current IP section members will receive a waiver of next year’s IP section membership dues. Speaker: Dodie Katague, Deputy District Attorney, Contra Costa County Time: 5:30 pm – 7 pm

Location: Riu Palace Mexico, Playacar, Mexico

Location: John F. Kennedy University 100 Ellinwood Way, Room S312, Pleasant Hill

MCLE: up to six MCLE credits including ethics and elimination of bias

MCLE: 1 hour general credit

Cost: $1,500 per person plus $250 for MCLE credits

Cost: $10 for section members, $5 for law student members, $15 for CCCBA members, $25 for non-members

Registration/More Info: Contact Carolyn D. Cain at cdcain@astound.net or Douglas W. Housman at dhousman111@yahoo.com

Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

October 16 | Employment Law Section

October 17 | CCCBA

October 25 | Family Law Section

Workplace Investigations: New Developments and Best Practices

Get to Know Your Local Judges

QDRO Basics - Types of Pensions, When a Joinder is Required and QRDOs

Registration from 11:30 to noon; program starts at noon. Speakers: Andrea Kelly Smethurst, Andrea Kelly Smethurst Law, PC Michele Lane, Law Offices of Michele Lane Time: 11:30 am – 1 pm Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general credit Cost: $40 for section members, $35 for law student members, $45 for CCCBA members, $50 for non-members

Join us for an opportunity to get to know members of our local bench on a one-to-one basis. Enjoy refreshments and conversation with judges Craddick, Brady and Flinn. Hosted by Frankel Goldware Ferber, LLP. Time: 5:30 pm – 7 pm Location: Frankel Goldware Ferber 2603 Camino Ramon, Suite 385, San Ramon Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

Beverages and snacks provided. Speakers: Ann Fallon, Esq. John Madden Time: 1:30 pm – 3:45 pm Location: Contra Costa Country Club 801 Golf Club Rd., Pleasant Hill MCLE: 2 hours family law specialization credit Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

October 29 | CCCBA

November 2 | JFK University

November 7 | Women’s Section

Octoberfest Interprofessional Networking Mixer

2013 Kennedy Laureate Dinner

Women’s Section Scholarship Dinner

Cocktail reception and auto collection tour, elegant dinner catered by Scott’s Seafood, Kennedy Laureate Award Program, silent and live auctions. All proceeds from this dinner will directly fund educational scholarships for veterans and disadvantaged students.

SAVE THE DATE! Focus will be on rainmaking for women. More information to come.

The Contra Costa County Bar Association is proudly co-hosting the Interprofessional Networking Mixer. Thanks to our sponsors, it is free to attend with a no host bar. We have many different professionals from attorneys, bankers, CPAs, other financial services professionals as well as folks from commercial real estate for referral partner networking. We’ll be out in the beer garden, so come ready to talk shop and enjoy a pint. Time: 5 pm – 7 pm Location: Pyramid Alehouse 1410 Locust St., Walnut Creek Registration: Online at http://octebhh.eventbrite.com More Info: Contact Theresa Hurley at (925) 370-2548

Laureate Honorees: Thelton Henderson, Federal Judge, Northern District of CA Shirley Nelson, Summit Bank Founder/CEO Jonathan Moscone, Cal Shakes Theater Artistic Director

Speaker: Patricia Gillette Time: 5:30 pm – 7:30 pm Location: Scott’s Seafood, Garden Room 1333 N. California Blvd., Walnut Creek

Time: 6 pm – 10:30 pm Location: Blackhawk Museum, Danville Cost: $200 for general admission, $250 for VIP reception and dinner Registration/More Info: Anne Marie Taylor at (925) 969-3491 or email amtaylor@jfku.edu

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

CLASSIFIEDS

TWO OFFICES IN DOWNTOWN MARTINEZ Two large window offices are available for rent in a congenial 5 office suite of attorneys. The spacious offices are located in an historic building overlooking Alhambra Creek Plaza. This professional Class A office suite is located upstairs above Starbucks and is only three blocks from the County Courthouse. Each of the offices has creek views. The building was completely renovated several years ago and has kept its historic charm. The suite has its own restroom facilities and workroom/kitchen. For more information please call 925-957-8811.

PROBATE PARALEGAL TO ATTORNEYS Joanne C. McCarthy. 2204 Concord Blvd. Concord, CA 94520. Call (925) 689-9244.

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Youngman & Ericsson, LLP

Craig S. Nevin . . . . . . . . . . . . . . . . . . . . . . . 6

1981 North Broadway • Suite 300 Walnut Creek, CA 94596

Perry A. Novak , UBS Financial Services, Inc. . . . . . . . . . . . . 2

Tax Lawyers.

David B. Pastor . . . . . . . . . . . . . . . . . . . . . 27 Pedder, Hesseltine, Walker & Toth, LLP . . . . . . . . . . . . . . . . . . . . . . 10, 25 Scott Valley Bank . . . . . . . . . . . . . . . . . . 19

www.youngman.com

(925) 930-6000

Spencer Elrod Services, Inc. . . . . . . . . 29 Candice Stoddard . . . . . . . . . . . . . . . . . . 38 Warden Appraisal Service . . . . . . . . . . 8

Candice E. Stoddard Personal Injury Real Estate Litigation Trust and Estate Disputes Mediation

Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

SEPTEMBER 2013

925.942.5100 • fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 25 years

Westlaw Next, Thomson Reuters . . . . . . . . . . . . . . . . . . . 3 Michael J. Young . . . . . . . . . . . . . . . . . . . 14 Youngman & Ericsson, LLP . . . . . 17, 38 Zandonella Reporting Service . . . . . 25

IS PLEASED TO ANNOUNCE THAT HORACE W. GREEN HAS JOINED THE FIRM AS PARTNER Horace is an experienced and well-established trial attorney whose practice is devoted to the representation of individuals and entities in a variety of civil disputes, including litigation related to general business, employment, ERISA and insurance coverage. The Firm continues to concentrate on business, employment, estate and tax planning, real estate and related litigation matters. 1333 N. California Boulevard, Suite 350 Walnut Creek, California 94596 Telephone: 925.944.9700 Facsimile: 925.944.9701 www.bpbsllp.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

DIABLO VALLEY REPORTING SERVICES Certified Shorthand Reporters

Serving the entire Bay Area • Deposition Reporting • Experienced Professional Reporters • Computerized Transcription • Deposition Suites Available • Expeditious Delivery • BART Accessible

2121 N. California Blvd. Suite 210 Walnut Creek, CA 94596

925.930.7388 fax

925.935.6957

dvrs2121@yahoo.com

SEPTEMBER 2013